This article is written by Yogesh Palekar, here he has discussed a tale of a whistle-blower who was punished 4x than the dishonest people he exposed.
“The world is a dangerous place, not because of those who do evil, but because of those who look on and do nothing” –Albert Einstein
Whistle-blowers, however, are the ones who do not just look but speak up and take a stand against such evil. Worldwide they are considered as the agents of angels, the ones who help law enforcers in imposing punitive action against the dishonest. It is mostly due to the co-operation from the whistle-blowers that law enforcing institutions around the world have got their work cut and been able to investigate efficiently. Justly, whistle-blowers globally are duly recognized, either by paying them monetary rewards on successful prosecution or pardoning off their sentences and giving them immunity for their co-operation.
Today’s story is of an American whistle-blower, a gentleman named, Mark Edward Whitacre who was the president of the Decatur, an Illinois-based Bio Products Division at Archer Daniels Midland “ADM”.
In those times, ADM was a company in the big league having revenues of billions of dollars and employing over 30,000 people. It was a Fortune 500 company and also the largest food additive company in the world. Their products even today are incorporated as ingredients by large global companies’ like– Coca-Cola, Kraft Foods, Kellogg’s Cereal, and Pepsi.
Turning up against such a huge organization and reporting a dishonest act is no small deal, even for a high-level executive as Whitacre. Incidentally, Mr. Whitacre was also the highest level corporate executive in the US History to be a Whistle-blower.
So what was ADM actually up to?
ADM coordinated efforts amongst itself and its various competitors to artificially increase the price of a product they sold- Lysine. This price-fixing scheme was massive in proportions and is now famously known as the “Lysine Price-Fixing Conspiracy”. Fixing the price of the product meant that ADM was stealing millions of dollars each year from consumers in the form of higher product prices. Such conspiring efforts to hike prices is a violation of the US and global antitrust laws and also a criminal offense.
As Mark rose the positions in ADM, he started noticing some uncanny and unethical activities by ADM’s top executives in the form of conspiring with the competitors to rig the prices northwards. More than just noticing, he felt pressured to be a part of it. As a result of this psychological work pressure, he soon started behaving weird. Mark’s wife Ginger took notice of her husband’s worrisome behavior and suspected something was wrong. When she confronted him, Mark emotionally blurted out and told her all that was going on within the company.
After her hunch proved to be true, Ginger pushed her husband to come out and blow the whistle on the conspiracy and warned that otherwise, she would do it herself. On the same day, Whitacre landed himself in the Federal Bureau of Investigation’s “FBI” office and confessed to the white collar crime that he and his company were part of.
A recent photo of Mark and Ginger
Whitacre also agreed to help the FBI to gather evidence to assist them in the investigation and further prosecution, Later on for three years (1992–95), Whitacre wore a wire and taped the internal meetings of ADM’s executives and also those with their competitors, to provide FBI, the evidence of how the global conspiracy allegedly was hatched and maintained.
The investigation and prosecution of ADM and some of its executives have often been reported to be one of the “best documented corporate crimes in American history” all thanks to the undercover assistance of Whitacre
In October 1996, ADM pleaded guilty to fixing prices and paid $100 million in fine, the largest antitrust fine in U.S. history at the time. ADM also was fined almost $50 million by the antitrust authorities of Canada, Mexico, and the European Union.
Additionally, they also paid hundreds of millions of dollars more ($400 million alone on account of one class action suit) to the customer plaintiffs. The lysine cartel was the first successful prosecution of an international cartel by the U.S. Department of Justice “DOJ” in more than 40 years.
Three executives of ADM including the vice chairman got a prison sentence, the maximum amongst them being for 30 months (2 and a half years)
So what did Whitacre get after his heroics? A ten and a half years Federal Prison Sentence. Wait, WHATTTTTT?
Yes, it was learned that while Whitacre assisted the federal price-fixing investigation, he also at the same time embezzled $9.5 million from ADM. This act made him lose his whistle-blower immunity. The punishment, veritably was 4x longer than handed out to the ADM’s executives whom he exposed.
A prelude- Whitacre was scammed by a group in Nigeria in an advance fee fraud, and his losses in the scam may have been the initial reason behind his embezzlement activities.
Whitacre’s story is indeed a riveting one and deservedly has been widely told. It is a subject of 3 books, one Discovery Channel documentary and the movie “Informant” starring Matt Damon as Mark Whitacre.
Books on the life of Mr. Whitacre
In his book “Rats In The Grain” attorney James B. Lieber presents Whitacre as an American hero overpowered by ADM’s vast political clout. Rats In The Grain presents evidence that the DOJ often subjugated itself ADM’s political power and well-connected attorneys in prosecuting Whitacre.
Also, ADM’s CEO, Mr. Dwayne Andreas, told The Washington Post that he had known about Whitacre’s frauds for three years before it was made known.
It leads me to speculate whether Whitacre was fired and turned over to the Federal authorities by ADM only after they learned about him being an FBI mole? Also were the payments actually part of some shady dealings that the company engaged in and Whitacre was made a victim post he turned disloyal to the organization? A punishment for exposing their dishonest brethren.
Whitacre went through it all, from being scammed to being part of a global price-fixing conspiracy, to taking a risk to his life by being an undercover agent, to get a prison sentence, the pressure of all this was frightfully burdensome for him and took a toll on his psychological wellbeing, he was diagnosed to be suffering from bipolar disorder. (Whitacre even tried to commit suicide).
A question genuinely pops up, Was Whitacre’s prison sentence excessive and unjust, when one takes into account his cooperation in the much larger price-fixing case and the backdrop of events and the pressure on him?
P.S: While Whitacre was in prison, his family was financially supported by companies like Coca-Cola, Kraft, and Pepsi (the ones that got the millions of dollars on account of damages for their losses) as a gesture of showing their gratefulness for Whitacre’s courage.
And do watch “The Informant” while munching onto some lysine containing popcorn, to know more about the intriguing tale of Mr. Mark Edward Whitacre.
This article is written by Yogesh Palekar, here he has discussed on the Undoing of the World’s Richest and the Least populated Island Nation, which was sanctioned stricter than rogue nations like North Korea & Iran.
When we think about sanctioned nations, names of North Korea, Syria, Iran, Sudan instantaneously come to our mind, these nations have been constantly marred by threatening dictatorship, terrorism, illegal weapon trade, and related bloodshed thus becoming global enemies and thereby getting themselves sanctioned by the Western powers.
However, Can we ever imagine a scenic island nation full of coconut trees lining its dazzling beaches, glowing blue sea water, and undersea coral marvels adorning its coast, topping the league of such rogue nations to become the strictest sanctioned nation at one point of time?
As you momentarily scratch your head over- ‘Why an ideal holiday destination was meted out with such harsh treatment?’ Let me tell you, they deservedly got it.
The nation we are talking about here is, Republic of Nauru “Nauru” a tiny peaceful island nation located in Central Pacific in Micronesia. This island was first discovered by a Brit John Fearn who called it “Pleasant Island”. Since then it has gyrated from the colonial rule of one western power to another and back, to finally gain its independence in 1968, so how did Pleasant Island become so unpleasant?
Aerial view of Nauru
It helped money launderers launder their ill-gotten gains thus earning the rare distinction of an entire nation being designated as a supporter of Money Laundering.
However, Nauru wasn’t always an outlaw nation. After its independence, the period of 1970s to early 1990s was economically very fulfilling for Nauruans. It was the country with the highest per capita GDP in the world during those times.
In 1975, Nauru’s economy earned approximately $2.5 billion having done quite well with a singular export derived from its geographical isolation. For millions of years, migrating birds took a bathroom break on this coral sanctuary, leaving the island’s interior hummock composting rich veins of dense phosphate. However, due to intense exploitation by the local government, the phosphate reserves got depleted too fast too soon and thus the nation started fretting over new and alternate sources of income.
That is when Nauru’s finest minds decided to turn to the heady riches of international banking, specifically, opting for offshore banking, whereby a country registers new banks with loose rules and permits them to operate anywhere in the world except onshore in the country of registry. Anyone could set up a licensed bank account in the country for only $25,000. As a matter of fact, during those times the Nauruan registration website advertised its jurisdiction as being the easiest in the world to obtain a banking license.
The loose banking laws were complemented by very strict privacy protection offered to customers of the bank by the Nauruan law. The privacy protection was, in fact, stronger than those in notorious offshore money havens like Switzerland and the Cayman Islands, thus the tiny nation became all the more attractive to criminals looking to conceal cash.
But how exactly did the money laundering scheme operate and who laundered money through it?
The scheme was designed by Russian bankers but was run by a married couple in New York – Peter Berlin and Lucy Edwards, a vice president of the Bank of New York. (Edwards was born as Ludmilla Pritsker in Leningrad). Beginning in Moscow, two established banks, Sobinbank and MDM, opened two separate banks — Depozitarno-Kliringovy Bank “DKB” and Flamingo Bank to serve as the conduits for fleeing funds.
Funds from Flamingo and DKB were then funnelled to a shell bank registered in Nauru called Sinex ( Can you imagine this to be a name of the bank, however, it was real). Sinex was founded in the early 1990s by several Russians, one of whom, Aleksey Volkov, who eventually worked directly with Berlin and Edwards out of their New York office. Sinex opened a correspondent account with the Commercial Bank of San Francisco, which permitted it to operate in the United States. Payments from Sinex were generally made to several shell firms, companies that did no business other than to receive these funds and who had running accounts with the Bank of New York. To avoid suspicion, Berlin and Edwards continuously created new names for these shell firms: Benex International, General Forex, Torfinex, Lowland Inc., Becs International, etc. From there, money was dispatched to numerous offshore locations, where it rested as clean corporate funds, easily accessible. One Russian suspected in participating in this scheme is Semyon Mogilevich, the notorious mafia head known as the Red Don.
Indeed, much of a shell bank’s activity takes place not in Nauru but in correspondent accounts in other countries. A correspondent account is just like a checking account except that it’s for an entire bank.
Once your dirty funds have moved through a bank registered in Nauru, they are essentially liberated. No investigator can subpoena “records” to trace the flow of money — because there simply aren’t any. A Nauru bank is a firewall for any investigating official. What, exactly, was the transaction? Where did the money come from? In Nauru, the buck stops there.
Victor Melnikov, deputy chairman of the Russian Central Bank, claimed that $70 billion was transferred from Russian banks and laundered primarily by the Russian Mafia with the help of offshore banks in Nauru, to evade taxes, causing immense financial loss to Russia.
It is purportedly stated that during those times the nation had over four hundred registered shell banks which only existed on paper and were all registered on a common address of The Nauru Agency Corporation “NAC”.
A New York Times journalist Jack Hitt who visited Nauru to report on the news, stated to have been filled with weird terror when he stood in front of the building of NAC which was only half a shack and the only visible presence the offshore banks had in Nauru were, the wall display in a hallway of NAC where their names are engraved in plastic.
Indeed a riveting tale of how half a shack crippled one of the world’s largest superpower.
Finally, the Financial Action Task Force “FATF” the premiere body fighting terrorist financing and money laundering globally took Nauru to the task and declared it as a non-cooperative nation.
( As a matter of fact the then Nauruan President wrote a letter to the US trying to extort $ 10 million in exchange for a change in the laws. The letter claimed that the money was simply compensation for Nauru’s losses due to “unsubstantiated allegations” of money laundering).
The harsh sanctions resulted in foreign banks refusing to trade in dollar-denominated transactions with Nauru thereby eventually stopping all the trade and thus rendering the business of generating income from operations of offshore banks useless.
Since 2001, however, Nauru worked to clean up its act by introducing and implementing anti-money laundering laws and abolishing the shell banks.
The positive steps that the nation took to fight money laundering resulted in the non-cooperative label and sanctions being finally lifted in 2005.
Currently, Nauru is one of the poorest countries in the world having a GDP of around $140 million (that amount of money cannot buy 2 quality strikers for a top European football club). It’s finest minds, however, are always looking at new avenues of money making, even exploiting its membership in the UN General Assembly to recognize and help legitimize the unrecognized nations, such as the breakaway republics Abkhazia and South Ossetia in exchange of money.
This article is written by Roy George. He is a senior associate at AZB & Partners. He completed his undergraduate studies in law and business at Symbiosis Law School. He subsequently worked at JSA for 5 years before taking up an offer to do his masters in corporate law (MCL) at the University of Cambridge. In his free time, he enjoys playing football, and following the economy and politics, not necessarily in that order.
Let me begin with a commonly used trope – the liberalisation of the Indian economy in 1991 unleashed the economy’s animal spirits bringing us to where we are today – India is the world’s 6th largest economy (in GDP terms)(1) and its fastest growing large economy.(2) Together with this whirlwind expansion, corporate law and the number of corporate lawyers and law firms have exploded too.
But the question which I pose today is where are Indian law firms positioned today and where are we heading? While there are many facets to this question, this piece will focus on the spectrum of legal work and partner/associate leverage.
(3)The spectrum of legal work which a corporate law firm engages in can be broadly categorised as(4):
Standardised;
Customised;
Grey hair;
Rocket science.
Standardised work is where a client comes to you with a common problem. Since the problem is not complex, the client will be looking to the lawyer to provide an efficient cost-effective solution. The client is aware that a broad range of firms will be able to handle the problem, almost always for fixed/capped fees. From the perspective of the lawyer/law firm, there are several factors to consider, to ensure that you are meeting the requirements of the client while beating the competition. These factors include having established systems and procedures, having a higher ratio of junior lawyers to senior lawyers (10:1 or even higher) and efficient delivery. An example of standardised work would be generic document review as part of due diligence exercises – perhaps, the type of work which would be the bread and butter of Legal Processing Outsourcing (LPO) entities.
Established systems and processes would mean that the individual involved in the matter would be required to follow precedent with less focus on thinking creatively. To carry the document review example further, the individual would be required to follow standard templates to record information obtained on the basis of such document review.
These types of assignments would emphasise efficiency, speed and staying within a fixed fee budget, and given the lower margins on such assignments, would inevitably be higher volume as well.
Moving along the spectrum, customised work is standardised work with additional requirements which may be client or sector specific. These assignments may require a deeper understanding of the client’s business, and for the individuals executing the assignment to have stronger and deeper relationships with the client. An example of this may be where a taxi firm engages a law firm to understand its labour law compliance obligations in India’s various states. Such an assignment will continue to require established systems, procedures and precedent, but will require more senior lawyer involvement and judgement. While fees would see more flexibility on customised work, clients would continue to be price sensitive. Leverage of junior to senior lawyers would be in and around 7/8:1.
The grey hair segment, as the name suggests, alludes to work which requires extensive experience and judgment, usually complex issues which the client does not deal with on a regular basis. Examples of work in this segment could include complex financial transactions such as high value private equity investments and strategic M&A. This type of work typically requires heavier involvement of senior lawyers interpreting law and providing legal solutions utilising their specialist knowledge. Leverage of junior to senior lawyers in this segment would usually be in the range of 3/4/5:1. Fees in this segment are higher, but will vary based on the type of transaction and client. For example, a high value M&A transaction for a client which doesn’t often do M&A would likely mean higher fees when compared with advising a private equity player which makes high value investments but on a comparatively more regular basis.
Finally, coming to the rocket-science segment. These are unique problems which need unique solutions, and problems which are major “bet the company” issues in terms of scale. These matters require a very high level of expertise and experience, not to mention wide ranging knowledge and creativity. Given that such matters will require intensive senior lawyer/partner involvement, the leverage ratio could be as low as 1/2:1. The importance and criticality of these matters will mean that the client will be willing to pay premium fees for such matters. Examples of such matters may include the division of the Reliance group between the Ambani brothers, the insolvency proceedings relating to the sale of Bhushan Steel to Tata Steel – the first major victory for creditors under the Insolvency and Bankruptcy Code, advising ride hailing app Uber on its entry to India and many others.
It is important for a law firm to know where it is positioned along the spectrum so that it can deliver a value proposition to its clients. If a law firm is doing mainly customised work but its leverage ratio is 2:1, then given the high involvement of senior lawyers it is unlikely that the fees charged by the law firm will be within the expectations of the client or competitive with the market. Similarly, if a law firm’s leverage is at the level required for customised work but it is undertaking upper segment grey hair work, then the fall-out will be that there may not be enough senior lawyer involvement on the matter and the quality of the work product may not meet the expectations of the client. Other considerations in this context are that lawyers usually consider the work that they are doing to be higher on the spectrum than it actually is,(5) and that work that a firm does is going to be subject to constant downward pressure on the spectrum – meaning that, typically, cutting edge work done today becomes commoditised as time goes by.(6) However, I will leave discussion of these considerations for another day (or article!).
Are Indian law firms positioning themselves optimally to meet the demands of the work they are undertaking on the spectrum of work? Let’s first look at leverage in a mature market like the US. Wachtell, Lipton, Rosen & Katz, a firm reputed for its “rocket science” legal work such as defending against hostile takeovers and sensitive litigation – according to numbers available for 2016, leverage for Wachtell was 2.11. While for a more mainstream corporate law powerhouse such as Davis, Polk & Wardwell, leverage was 4.86. While there are exceptions, the aforementioned examples do point towards these firms positioning themselves according to the work that they are doing i.e. more rocket science work for Wachtell meaning lower leverage and more grey hair work for DPW meaning higher leverage.(7)
A look at the leverage ratio numbers available in the public domain for Indian law firms paints an interesting picture. If we look at the top 8(8) firms:
AZB & Partners- 4 (80 partners and 320 non partners);
Shardul Amarchand Mangaldas and Co. – 4.1 (102 partners and 418 non-partners);
Trilegal – 5.5 (42 partners and 231 non-partners);
Cyril Amarchand Mangaldas – 5.5 (103 partners and 547 non-partners);
Khaitan & Co. – 3.6 (115 partners and 415 non-partners);
J. Sagar Associates – 2.3 (92 partners and 208 non-partners);
S&R Associates – 4 (13 partners and 52 non-partners);
Luthra & Luthra – 3.9 (72 partners and 278 non-partners).
5 of the 8 firms are in the 3.5 to 4 range – for the purpose of comparison, these leverage ratios put them in the company of American firms such as Skadden, Arps, Slate, Meagher & Flom, Latham & Watkins and Cravath, Swaine & Moore – suggesting that these firms are geared towards the upper end of the grey hair segment of work. With regard to the firms which have a leverage ratio of 5.5, their leverage suggests that they are also geared towards the grey hair segment, with perhaps a portion of their work comprising higher volume transactions/matters. Interestingly, JSA is something of an outlier with its leverage ratio of 2.3 (not far away from Wachtell’s 2.11), which gears it to be in and around the rocket science segment.
As I’ve illustrated above, these numbers give an indication of the segment to which the firms are geared to, but are not definitive pointers to the work that the firms actually do. While I will not be speculating on whether each firm’s leverage ratio is aligned to the work they do, I would like to refer to two examples which perhaps indicate the different strategies being adopted by India’s top firms. In 2015, a senior Amarchand Mangaldas partner stated that the firm would be looking to become a “1,000-people firm”(9). Given the relative size of the Indian legal market, this suggests that the firm would be hiring more associates/non-partners which in turn points to higher leverage and undertaking more high volume work.
The other example is in respect of AZB. The RSG Consulting report on AZB in 2017 said that the firm’s “sheer attention to client satisfaction and the quality of work is defining them along the lines of a ‘Cravath’(10) of the Indian legal market – and the firm is benefitting whilst its immediate competitors are distracted with expansion” – perhaps a signal that AZB is prioritising work on the higher end of the grey hair segment and the rocket science segment over rapid expansion in the firm’s headcount.
It is worthwhile to remember that just as its economy, India’s law firms are moving towards a high growth phase – and in context to the examples above, the question to Indian law firm bosses is where on the spectrum of work do they want to operate. It is also important to remember that it is not necessarily better to be at the rocket science end of the spectrum or at the customised segment or any other segment for that matter – success can be had all along the spectrum – but rather, is your firm leveraged in a way that is aligned with its goals and objectives.
To paraphrase the bard in Hamlet: “To be (Wachtell, Cravath or DPW), or not to be”.
An acknowledgment to my professor at the University of Cambridge (and former Herbert Smith Freehills partner) Tim Bellis who introduced me to these and many other concepts, in the course of teaching a fascinating module on the organisation and governance of law firms offered on the Masters in Corporate Law (MCL) programme at the university.
Maister, DH 1997, Managing the professional service firm, Simon & Schuster, New York and DeLong, TJ, Gabarro, JJ, & Lees, RJ 2007, When professionals have to lead, Harvard Business School Press, Boston
Susskind, 2010, End of Lawyers?, Oxford University Press, Oxford
According to the RSG rankings for Indian law firms, the top 8 firms are: 1) AZB & Partners, 2) Shardul Amarchand Mangaldas and Co., 3) Cyril Amarchand Mangaldas, 4) Khaitan & Co., 5) Trilegal, 6) J. Sagar Associates, 7) Luthra & Luthra and 8) S&R Associates.
Cravath, has been ranked the US’s top law firm for the last 2 years consecutively. It’s leverage ratio is 4.24 but with a total number 497 attorneys, it is far smaller than some other US law firm behemoths.
The Author is a corporate lawyer engaged with a Tier 1 law firm for over five years now. While work keeps him busy (he is turning around SPAs at 6pm), he often contemplates what drives his colleagues and friends in the profession. The recent attrition rate in his firm (more so from the younger generations on account of work-life balance and the older ones transitioning in-house to have ‘good hours’), drove him to write this article.
Consultancy v. Employment
Lawyers in India practice as consultants. They are restricted from practicing as employees for reasons that law is a noble profession which requires full time dedication. These restrictions are spelled out at length under Section VII of the Bar Counsel India Rules which further provide that:
“Bar Council of India is of the view that if the said officer is a whole time employee drawing regular salary, he will not be entitled to be enrolled as an advocate. If the terms of employment show that he is not in full time employment he can be enrolled.”
The fundamental difference between an employee and a consultant is that employees are hired under certain laws and are entitled to benefits such as gratuity, provident fund etc. whereas consultants are hired for their unique skill set and are paid lump-sum amounts for their work. This also implies that there are no laws governing the number of leaves, the work hours or any other benefits to a consultant. A basic case law research confirms that there has been no interpretation of what is the role of a consultant in India.
The Lawyer Life: Consultants and Free Will
Lawyers being lawyers, have managed to read well into these loop-holes and accordingly when a firm hires a lawyer, the lawyer is generally party to (if there is any paperwork at all) a document indicating his retainer and standard termination provisions (often without any provision on notice period etc.). When hired by a counsel, usually there are no documents since the practising advocates do not require huge manpower and a confirmation is verbal. Thus, most firms/counsels do not have a policy in place and things like leaves, work hours are left to one’s imagination.
Other common issues that are visible in the system are erratic work hours – with urgent work popping up at odd hours of the night. The same goes for the leave policy and leave system that is barely followed. While employees are entitled to fixed leaves (in the nature of sick, annual and casual leaves), consultants are expected to work from home even on their off-days. The reason ranges from – this will barely take time to if you are home, we are sure you can take a few moments out for a quick review.
Let us be honest for a second, there is barely any lawyer who has not had the thought of quitting over the crazy (and mostly unnecessary) hours. Yet other than the occasional cribbing, there is no action that has been taken so far. When asked this question, most lawyers come back with – “I am used to it by now, I did so the junior should too, Try explaining this to the client.” Has anyone actually tried? This brings us to the important question a – what are the rights of the lawyers or the so called ‘free to work as they please consultants’?
It is but obvious that beyond the standard 8-10 hours, the mind is not productive. Despite this, lawyers are expected to work/ do work through nights chasing unrealistic targets. As opposed to many other organisations which maintain that they will remain unavailable after work hours or do not work weekends. Moving into the work-life phase seems a far point, but lawyers who tend to take a stand on everything, have surprisingly failed to take a standard on these absurd (unwritten) policies – of being available through the week, including the weekends where work may suddenly come. Unlike organisations which work in shifts, at any given time, lawyers choose to handle clients in different jurisdictions complicating their own work hours or not negotiating to place their meetings more suitably. More often than not the late hours trickle into cancellation of early morning meetings (if there are ever any).
Like all people, consultants are also entitled to basic rights like standard working hours, leaves etc. By implementing these over exploiting those who choose to be a part of the system, the growing attrition rate in the profession may be curtailed. While ‘dedication to any profession’ is a must (quoting the bar rules), the question is can dedication be equated to over-work? Basic rights should include right to enjoy one’s life (regardless of how that may be).
In the last few years, the clients have become more and more demanding with requests like – Can this SPA be turned around by tomorrow or Can we have memorandum by EOD (on a 6pm call, of course)? With the seniors at law firms giving in to these requests and over-committing, they have only one justification if we do not do it, some other firm will and there are only limited big ticket companies who meet the hourly rates. The recent attitude suggests that the money spent is equivalent to the hours devoted in the work place as opposed to the quality of work churned out by the lawyers. The funny thing is, client wants what he wants – it is always driven by vision of the business. So the question is the long hours, the fight over that one clause, is the client listening to the lawyer or is the lawyer giving in to the client?
It is also true that the list of fortune 500 is restricted to 500 companies willing to pay by the hour. This makes the competition amongst the law firms intense and eventually trickles from the partner to the associate fresh from law school. Except this fresher from law school is often left bewildered – is he sitting with the same ‘cool’ associates who resembled Harvey Spector? There is a lot more that goes in then just the screaming and shouting (still portrayed as what lawyers do – thank you Bollywood).
How much control do consultants really exercise over their life? It is true that if you end up in a good team, you may be slightly more privileged than others but the truth is that there is only so much that can be accommodated. Every-one loves a readily available worker or someone with so many EMIs that leaving is not an option. One may say the senior level management is having a better time. But is this really true? The pressure of getting a client or managing a team which is constantly snappy – any entrepreneur will agree – being a rainmaker is not easy. Getting a client is one thing but keeping one is a whole other story. Thanks to the power of google, it is now easy to connect with any one. So when you snooze, you lose. When the comments from the rival firm come at 3 am, you have to respond by 6 am. This keeps the management on its toes. The way on top does not look any better, does it?
The way forward: Making peace or moving on?
Many lawyers choose to firm hop in the hope of ‘better team’ or ‘understanding bosses’. Some choose to transition to other roles including in-house, policy, academics. Not much information is made available about the alternate options, which still remain unexplored. However, would it not be more realistic to improve the existing environment and allow a lifestyle which is more conducive? The journals or the web chooses to cover the ever increasing packages of lawyers but there is a lot of harsh reality attached to the pay slip which is ignored. Media tends to skip that it entails work over 15 hours or that most leaves are cancelled when transactions kick in, there are days where people do not or barely go home and a lot of the projected big numbers include variables which is a way to make the best of the situation and without the assurance of getting the desired amount (everyone works towards the variable – if you are suffering, might as well make money out of it?). Variables or bonus, as it is called, is very discretionary – a lesser known fact – it is the best described as a hamster wheel. Posts, positions, incentives – a cubical, a shared room, your own cabin, a plant crushed under a pile of books – it all looks glamourous – till the time you sit there for 15 hours, then its over-bearing. But do they not after a point, work robotically? Like a drill – one would say they live for the weekends – if only they had any.
It is not to say that being a lawyer is bad, it has its moments, like any other profession, but it is to contemplate on why those who stand up for rights of millions have failed to stand up for their own rights. Yes, a lot of lawyers get a kick out of negotiations (that one indemnity provision which makes them go crazy or that one minute in the court when the order is in their favour) or deal publications after months of due diligence and thousand page turns to the document. But what cost does it come at? No vacations, a big house because of big pay cheques, EMIs and of course, lots of saving ‘for retirement’.
This article is written by Shreya Bhargava. Here he has discussed on overriding effect of consumer forum over the arbitration.
With the passage of time, the population of the country is on hike and so are their opinions. Their opinion forms the basis for their interpretation, it may be a good or a bad interpretation. What would happen in the situation where people starting interpreting the laws? We might be flooded with several interpretations. The interpretations will be in such huge number that the laws will become unclear. This is the reason why lawmakers, while making the law, formulate it in accordance with the aim, set out by them, before penning down the legislation. The aim of any legislation defines the basis of the act. It becomes the grundnorm of the act, based upon which the judiciary interprets the disputed texts.
The aim of any act forms the indispensable element because it acts as the cord that delivers the real intention of the legislators behind the act. Whenever there is a clash between two legislations, it is the aim of the legislation which makes the judges to derive at the endpoint in deciding which law has the superseding effect. It is through the doctrine of pith and substance that judges are able to derive at the major inclination towards one act over another act. This inclination is decided on the basis of the aim/goal of the act and the facts of that particular case.
Somewhat similar situation aroused in front of Supreme Court in the case of Aftab Singh and Others v. Emaar MGF Land Limited and Another. In this case, the Supreme Court cleared out the battle between arbitration and the statutory remedy when it comes upon solving the consumer disputes, which also upheld the decision of the National Consumer Disputes Redressal Commission (NCDRC). In this case, the apex body for the consumer dispute in India (NCDRC) ruled in favor of the statutory remedy over the arbitration.
Consumer Protection Act (CPA)
The beneficial legislation of Consumer Protection Act aims at reducing the grievances of all classes of customers by providing them with the preferential treatment. According to the Consumer Protection Act, the consumer dispute is the entity where the consumer/customers have been given the convenient safeguards against ample exploitation like bad customer service, faulty goods or any unfair trade practices. The interest of the customers is protected by setting up, the three-tier quasi-judicial consumer Redressal machinery which is at national, state and district levels as per section 9 of Consumer Protection Act. The Consumer Protection Act, 1986 (CPA) has been enacted in light of certain concerns related to public policy and the benefit of the consumer.
Relationship between Arbitration Act and CPA
In India, people are least aware of the consumer’s rights and lags behind having a low general understanding of arbitration as dispute resolution mechanism. The arbitration clause can curtail the grounds on which the consumers can raise the disputes, whereas on the other side the consumer protection act may grant the consumer various grounds on which he can file the complaint which may not be otherwise permitted in the standard form agreement having the arbitration clause.
Arbitration has equal bargaining powers and the resources at hand which makes it private, efficacious, and timely form of dispute resolution. Whereas in case of consumer disputes, the case is different, where they are exposed to the standard form agreements making them submit to the unfair or the repressive terms. They are several times made part of the one-sided arbitration clause, which is drafted keeping in mind the interest of one party only.
These days Indians are shifting to the online purchasing platform and being ignorant of not checking the agreements which makes them covered under the blanket provision and end up being the party to the arbitration. This makes less options opened for the consumer to resort to the statutory remedies which in turns endangers the interest of the consumers. This may also build a hostile market against e-commerce in India. It may have an adverse effect not only on the Indian economy but also on the e-commerce giants who aims to invest in the growing market.
Consumer Court as a Special Court
It was held in the case of Aftab Singh v Emaar MGF Land Limited & Anr. , that the provisions of the arbitration act does not apply to the consumer courts, as they are the special courts set up for the public purpose. In this case, the group of the homeowners filed the complaint against Emaar MGF Land Private Limited (Builder) before NCDRC. The complaint was filed for the non-delivering the plots to the buyers as per the Buyers’ Agreement. The builder filed the application under section 8 of the Arbitration and Conciliation Act, on the basis of the arbitration agreement made between the parties which were mentioned there in the Buyer’s Agreement.
It was argued by the petitioner that the remedies provided under the Consumer Protection Act are not in exclusion of the existing laws, but are in addition to it, which has been sated in the case of National Seed Corporation Limited v M. Madhusudhan Reddy. It was also argued that the consumer protection act is the piece of the legislation which intends to confer the benefits and it is the, for which the purpose should be advanced. Therefore, regardless of having entered into the arbitration clause, the consumer can invoke section 3 of the Consumer Protection Act and bring the complaint to the consumer forum.
The builder pleaded that the Consumer Courts act as the ‘judicial authority’ within the scope of section 8 of the Arbitration and Conciliation Act and therefore if there is any valid clause entered between the parties, then the consumer courts can refer the parties to the arbitration. And hence according to the Act, the consumer courts are obliged to bring the case for the arbitration, irrespective of the High Court and Supreme Court decisions. The NCRDC’s full bench ruled that the arbitration act does not bar the consumer court’s jurisdiction relying on the Supreme Court’s judgement in the case of Booz Allen Hamilton Inc v. SBI Home Finance Ltd, which provided the country with the disputes that are not arbitrable. In this case, the Supreme Court came with the 7 categories of the disputes that are not arbitrable.
The commission also relied on the Supreme Court judgement in the case of A. Ayyasamy v. A Paramasivam that the dispute will not be arbitrable if the civil court’s jurisdiction has been exclusively given to a tribunal or the special court. The Consumer Courts were made to create an organized system for dispute between the people who possess the unequal power i.e. the consumer and the large corporations. The commission also pointed out the section 2(3) of the Arbitration and Conciliation Act which refers to the situations where the special categories of disputes are protected from being referred to the arbitration. Therefore, this provision protects the Consumer disputes. The court concluded that if the court allows the party to go for the arbitration and being in favour of the builder, it will defeat the goals and the main purpose of the Consumer Protection Act.
The Conditions prior and post 2015 amendment to section 8 of Arbitration and Conciliation Act
Section 8 of the Arbitration and Conciliation Act states that the judicial authority can instruct the parties to go for arbitration in the case when there exists the arbitration clause in the arbitration agreement. It does not bars oust the jurisdiction of the Consumer Court, it will continue to hold and enjoy the jurisdiction irrespective of the presence of an arbitration clause in the agreement.
The Supreme Court contended that there was no legislative intent of the amended provisions of section 8(1) in the Arbitration and Conciliation Act, so as to override the other statutes which have the specific remedies. Neither it intends to make disputes related to trusts, criminal law, tenancy, telecom, family law, IPR, etc, as the arbitrable subject and to against the judgement of A Ayyasamy v A Parasivam & Ors and Booz Allen Hamilton Inc. v SBI Home Finance Limited & Ors.
Supreme Court analyzed the situations prior to 2015 Amendment, related to referring the consumer disputes to arbitration. Supreme Court referred to the judgments prior to 2015 which had the settled law in cases of Fair Air Engineering Pvt. Ltd & Anr V N K Modi, National Seeds Corporation Limited v Madhusudhan Reddy & Anrand Rosedale Developers Private Limited V Aghor Bhattacharya & Ors. These cases held that even if the dispute arise from the contract having the arbitration clause, it will not impede the parties to resort to file a complaint before the consumer forum under the Consumer Protection Act. All of the judgements had the rationale that provision of section 3 of Consumer Protection Act states that “the provision is in addition to, and not in the derogation of any other law for the time being in force.”
The Supreme Court acknowledged the 2015 amendment which restricted the power of any judicial authority to refuse to refer the dispute to arbitration under section 8(1) and appointment of arbitrator under section 11(6A) and also acknowledged the fact that it invalidated the earlier precedent in the case of Sukanya Holding (P) Ltd v Jayesh H Pandya & Anr. Supreme Court considering section 2(3) of the arbitration act, states that the Part I of the arbitration act shall not affect any other law for the time being in force, by virtue of which certain disputes may not be submitted to the arbitration. Supreme Court stated that the legislative intent of 2015 Amendment was never to override section 2(3) of the Arbitration Act and other statutes which offers the public remedy like that of CPA. The Supreme Court in 1994 already held that CPA is a beneficial legislation which provides the economical and expeditious remedies to the aggrieved consumer in the case of Lucknow Development Act V M K Gupta.
Referring to all of the above cases, the Supreme Court, in this case, affirmed that the decision given by NCDRC is valid and stated that the consumer dispute are the subject matter where the dispute cannot be referred to arbitration as it pertains to rights in rem (public rights). It comes under the ambit of the non-arbitrable dispute defined under Booz Allen and Ayyasamy case. The disputes are non-arbitrable in disputes related to criminal laws, tenancy, trusts, family law, telecom, IPR, insolvency and winding up, and in certain cases, fraud.
Conclusion and Critics of the Case
It can be ensured with the judgement that consumers who have lesser bargaining power than that of the service providers shall not be pushed towards the relatively cumbersome process of the arbitration where there can be other more affordable and efficacious low public law remedies available. The CPA is special legislation which has the public law remedies dealing with the rights under the umbrella of “right in rem” which has been espoused by Booz Allen. The case had many critics for it, as it was delivered during the course of time when India has been continuously focusing upon the survival and the supremacy of the arbitration proceeding over litigation in the Indian dispute resolution. And it was the major reason that it appeared for some of the people as a diversion from the object of the Indian arbitration system to be an arbitration-friendly hub. This also draws our attention towards the fact that the arbitration shall be made a more consumer-friendly method of dispute resolution. It is because of this judgement that people were able to depict the heightened element of the public interest consumer dispute in India.
So when I was a toddler in primary school, at some point in standard 3, I began to top in my class.
At that age, for some reason, I had a nemesis (at least in my toddler’s eyes at the time) in my class. He never left an opportunity to bully me, mock me or even hit me.
He tried to establish that he was better than me and I wanted to prove him wrong with all I could manage.
So when the results came out, I asked him how much he scored. It was some mediocre marks while I had topped in class, scored full marks in maths and was on top of the world at the time. I wanted to claim victory by rubbing it on my nemesis’ face.
We think children are innocent, but just see what is going on inside a 7 year old’s head and you will be shocked.
Anyway, he had a comeback for me. He said you think you are smart because you got some marks? My mother said I am very smart and I can score even more than you if I just concentrate on studies. It’s a different thing that I don’t want to do that.
How accurate. It was prophetic. I still remember him saying those things while getting red with indignation. Sometimes the people we do not like, teach us the most important lessons.
Most of us can get the things we want. We just don’t do what we have to do to get them. We all are doing these self sabotaging activities in some area of life or the other. Most probably in all areas!
The only other thing I remember about my classmate so vividly and clearly is the incident where he shat his pants in class 2 and was sent home and three benches had to be evacuated because of the disgusting smell. Being as petty as I am, I heartily laughed at him until he was escorted out of the classroom.
No matter how much I grow up, I never outgrow that competitive kid who wanted to outshine everyone else and took pleasure at my supposed enemy’s humiliation.
I can now think back rationally and realise that he was a kid raised by a single mother, who worked incredibly hard to give him an education, and he suffered from all the problems a boy faces from not having a father figure in early childhood. I should not have been so hard on him! I can comprehend what a little prick I used to be as a kid. Maybe we could be good friends if we were not so petty and unnecessarily competitive.
Btw, even now in our school WhatsApp group he doesn’t let go of any opportunity to mock me, usually about my political views. He got an engineering degree and went on to do well in his career I believe and I am glad that it all worked out nicely for him.
But forget that story. I wanted to tell you about this phenomenon in our lives, and it’s all pervasive.
We usually know what to do, and still we don’t manage to do it!
We can all have the achievements we want, only if we concentrate and focus on them!
And the shocking thing is that we don’t despite those achievements being so near our grasp.
We tell ourselves stories about how hard it is to get there, and what crazy sacrifices we have to make in order to be successful, which are usually totally wrong. Most of the times, these stories were passed down to us by people we trusted as children.
The primary school kid knew it, and most of us grown ups forget about it. We behave like we are forever trapped where we are in our lives, except that the reality is we are only trapped by our refusal to do what it takes to grow.
At primary school level, studying is very easy. There are these tiny, illustrated books. Anyone can study for a few hours and crack the exam. Even in lower high school classes, such as standard 6 or 7, I could study for 10-12 hours before the exam for most subjects and score near the top of class. I occasionally even topped. I wasn’t good with articulating or structuring my answers at that point, and if I did know that skill, I have no doubt that I would have topped without breaking a sweat every single time.
This is true for most of us. Even if you would have taken 20 or 30 or 40 hours compared to my 10-12, that does not change the situation much, because 40 or even 50 hours in 6 months is no big deal really. If you study the whole day before exams also, it’s barely 4-5 days of dedicated study per subject.
If that’s hard for you, try studying a little throughout the season. Studying with focus for a couple of hours a day for a month could make one score really well. Still, most people didn’t score as per their hopes. Most people struggle with academics.
Why?
We all heard it. We are still blind to it.
People who are not good at academics are told that they are not studious. They were told that they need more discipline. Practice, practice, practice, and do it all day – we heard. We were told we need to study day and night and only then we will have a bright future and a great career.
What a terrible and wrong thing to teach to kids. And at least I grew up with that misguided belief. I suffered my entire childhood and young adulthood under the burden of that unnecessary notion.
I think a lot of us were turned off by the idea that if we are not studying all the time then we were not doing enough.
If I tell you that is untrue, many of you will find it super hard to believe!
We were put off from academics by the idea that good students must study a lot, all the time, round the year. Even though I was doing well in academics, I grew up with the feeling of inadequacy and insecurity that I was not doing enough.
I wish someone told me that I need not study day and night, all the time, to be successful.
I needed consistency over intensity. I didn’t have to be 100% intense 100% of the time. If I was 20% intense for 20% of the time it was more than enough.
I just needed a strategy. I needed a clear game plan. I just needed a couple of hours of focused work, and that too not every day.
Things got better in college somewhere right in the middle of it, when I was able to get rid of this notion, and wanted to optimise the time I had for studying.
I was doing a lot of side hustles to earn money and build up my blogs like CLAThacker, iPleaders and A First Taste of Law (now shut down). I managed a team of 20 law students for my freelance business on top of that. I also mooted, and did a lot of other extra curricular activities. I needed to save time so I could continue to earn without jeopardizing my academics.
I looked for ways to study less and score more. And that’s how I began to get even better academic results.
When you follow a well planned strategy rather than generic wisdom that if you study a lot you will get a lot of marks and that you need to be a bookworm 24×7 to be a topper, you are more likely to do well.
When you break down what you have to do strategically and find easier ways to accomplish those sets of small and defined tasks, you do way much better with way less work, because your efforts are concentrated, focused and systematic.
Like I say often, systematic work always trump will power and good intentions.
The other major lesson I want you to take away from this is that it’s important to avoid bad advice. There is a lot of it around you that holds you back. Such advice will come from your parents, teachers and peers. Very often, they don’t know what they are talking about and are just passing on what they have picked up from others.
Get your advice from the best sources. Real experts who are recognised as thought leaders doing breakthrough work rather than the next person who is not successful in his or her own life. It’s possible today to go to such sources thanks to incredible growth in information technology and the internet.
Get your advice from people who can afford to charge for their advice! If they are charging for it, or if it is a part of their job, that means their advice is market tested and validated, or else they won’t survive in the market in the first place!
Also, we have a lot to unlearn. A lot of what our teachers, professors, seniors and other people in positions of authority have told us about how to succeed needs to be questioned and scrutinized.
Doing this well may provide the keys to many a treasure troves of success.
Primary school or High School is easy. How about something complex like success as a lawyer?
The goal is much bigger here. So is the reward. And therefore competition. No doubt that the challenge is far bigger and problems are harder to conquer.
But even then, it is not true that you have to work on it day and night, incessantly without getting early rewards, and give up hope of having any reasonable work-life balance if you want to succeed as a lawyer, and especially if you want to be an extraordinary lawyer.
There is a school of thought that one must work day and night, without stopping, with all one can muster at building a legal career, and only then, after struggling for years and years, one can hope for some success. You don’t succeed before turning your hair grey, this school believes.
It’s all over high school again. Same misinformation. Same myth in a different form.
Or think of the belief that one has to toil in a law firm 14-16 hours per day in order to save their job or be eligible for a small bonus. And that’s apart from giving up self-respect, autonomy and care for one’s own mental health.
Why do so many talented lawyers actually go through this?
Lawyers have to walk through this hell because there are no systematic ways to prepare them for the work they have to do. They try to learn the job while doing the job, and that’s obviously very scary and difficult.
Imagine surgeons having to learn how to do surgeries while working on live patients without ever being given any previous practical training. That’s what young lawyers have to face every day and that’s what ruins their peace and make career progression hard.
My learnings from my academic and professional life told me that there must be a better and more systematic way to train lawyers to do their job, without all these blood and tears that they are made to undergo.
And from 10 years of toiling and pursuing that idea, and contribution from hundreds of accomplished lawyers towards this goal, you have what we offer today through LawSikho. Courses that accelerate the creation of extraordinary lawyers.
We can’t make you extraordinary in a year but we can firmly establish you on the path to extraordinariness, especially because most lawyers today do not have access to such sophisticated systems to rapidly learn practical aspects of law. You will be miles ahead of most.
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So in the battleground of the legal career, you can be assured that our LawSikho graduates have the enviable upper hand, and it is a result of systematically designed regular practice. Give us 8-10 hours a week, and nothing will be the same again in your career.
So here is the offer. We are telling you to replace the vague idea in your head that you need to do indefinite but massive amount of work to succeed as a lawyer and you probably are not very clear about how that is supposed to happen.
We are telling you that we have a tried and tested, step-by-step, precise and systematic program that you can just follow without any worry and you will get to a definite point of capability and success as a lawyer.
It’s just like a 6 week body transformation program I have been following. I am on the 2nd week, and unfortunately I have not been regular and have done what I was supposed to do in 2 weeks over 2 months, but there is definitely a massive difference in how I look in the mirror, in a way I love.
Half the battle is to know what exactly one has to do.
When that is broken down, made simple and put into step-by-step exercises, achieving the goal becomes far easier, even if we are quite bad at following them.
And that is what makes LawSikho magical. We have a lot of offer, see how much you can take away.
Here are the courses we have opened for enrollment currently:
You know how people talk about how it is so difficult to build a profitable law practice on your own?
Bullshit, I say.
I started ClikLawyer in 2015 and shut it down in 2016 March. I ran it with two other co-founders for about 7-8 months. Before I started, another 2-3 months of prep work went into it.
It was a side gig. And still, we reached a revenue of 7-8 lakhs per month by the 7th month. In that month, expenses were 2.2 lakhs, which meant we made a very solid profit.
Our average revenue over those 7 months was approximately 3 lakhs per month.
The first month itself we did 1.5 lakhs.
People who say it takes grey hair and a decade to build a law practice have no clue about what they are talking about.
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So why did I shut it down?
In April that year, I moved to Goa. I had fallen sick and decided to move out of Delhi at any cost. My co-founders quit for various personal reasons. And I realised I could not keep things running from Goa, even though I experimented to see if I could.
Anyway, I decided more money wasn’t the goal and I need to make my health my primary concern. I already had a very demanding job of being the CEO of both iPleaders and LawSikho. ClikLawyer was the proverbial straw on the back of the camel which would have broken my back.
I erred in favour of sanity and peace. I went to Goa, set upna team in a co-working space in an idyllic and scenic village in Arambol, and that was that.
However, I really got my hands dirty in the law practice business, and while I love what I do at iPleaders and LawSikho, there are times when I totally miss the rush of ClikLawyer days.
Most of the work we did was money recovery. We used technology, and a lot of out of the box strategies to rapidly grow that business. We got a lot of references and repeat business.
I am now working on a law practice development course and this reminds me a lot of my ClikLawyer days.
Is there any question you would like to ask me about building a new age litigation practice? Just reply in the comment section and ask.
Are you struggling with anything in particular? Do share with me.
Also, never allow the knowledge aspect of litigation stop you from succeeding. Here is litigation library:
If you can cure this one bad habit, and I will tell you how, you can get to the next level of practice in a matter of months.
It is well known that regularly writing and publishing is a great way to build authority and credibility as a lawyer. In fact, in our Dream Job Bootcamp we use it as the primary weapon for getting our trainees jobs at decent law firms. We also extensively teach article writing, publishing and blogging, just like networking, to all our students of premium LawSikho courses.
Why is article writing so important for lawyers?
Yes, it helps you to get more clients. It helps you to earn the respect of your professional network. It can bring in more direct clients as well as referrals through the door.
Why just articles? What if you published a book in a cutting edge practice area such as arbitration or IBC?
However, when I ask most young lawyers about why they do not write and publish more aggressively, here is what they say.
I am not sure I am qualified to write yet. I am not sure I know enough. I think I need more experience before I begin to write and publish.
The lawyers who write regularly tend to publish one article in a month. Usually their articles are published online. It gives them great mileage. It is very obvious, and in the open for all to see. Even law firms are aggressively building their own blogs and hiring professional bloggers into their communication teams.
Still most lawyers don’t write at all!
Not writing because one is not confident of their own expertise is not a single dimensional problem. It is a disease that plagues young lawyers pervasively and causes all sorts of problems. This questioning oneself prevents any chance of early growth in legal career.
Many lawyers in their early years question their own expertise. They want to get more experience, years or whatever it is they are insecure about before they write more, begin to build their brand, start networking or even solicit clients. Years pass by and so do opportunities. Before they realise, they discover themselves slotted into various pigeonholes as mediocre lawyers by the legal industry. This is the reward of waiting for too long on the sidelines.
Also it is hard to develop new habits as an old lawyer. If you haven’t been building your brand in your 20s, it is unlikely that you will suddenly start in your 30s or 40s.
Also, even if you start, by now those who started 10 years earlier will be miles ahead of you.
Sure if you did not start early and have only now began to value brand building and investing in your name as a lawyer, then please go ahead and start immediately. The best time has passed long back, but now is the next best time.
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This advice is against the general grain of what you will hear in your local bar library. Seniors will caution you against growing too fast, or getting noticed too early in your career, or step onto the toes of more established players.
However, it has to happen now or later. Why wait to be the best you can be?
You need to be good enough to merit the brand. The only risk is when your brand building gets ahead of your actual capabilities. Then you may be in trouble. Otherwise, there is hardly any problem.
When young lawyers do well at the bar, there would be some oldies who get threatened. There will be many established lawyers who will support you, if you deserve their support, against unwarranted attacks. However, is anything worth avoiding doing well over?
In most courts these days, judges are quite appreciative of young lawyers who are highly competent. Focus on competence along with brand building. That’s the right path to take. Do not ignore one to develop the other.
Now, understand this – ‘expertise’ is always a relative term. Expertise is determined not by the number of years of practice in that industry, but by the amount of work I have put in on a specific issue.
I may have 10 years of experience as a criminal lawyer and may have done 5 arbitrations in my whole life. In another scenario, I may have only 2 years of experience but I may have written 20 articles on arbitration and done 4 arbitration matters. Who has more experience in arbitration?
Clients may prefer to approach me because I have worked more on arbitration.
Also, by putting out my articles to the public I have showcased my knowledge and interests in arbitration, which has already begun to get noticed by my peers and potential clients, increasing my odds of success in the area of arbitration.
I cannot directly influence the number of matters I get from clients. This is not in my hands.
However, how many articles I write and how more and more people get to know about me and my passion for that area of law is entirely up to me. This is something I can control.
And the better I get at this, the more chances are that in the initial years of my practice, I will have no problem in finding work. I am likely to get my own clients, and my friends and lawyers will trust me more and will be comfortable to refer their trusted relationships to me.
This is how the foundation of a good practice can be built. Of course, goes without saying that when clients come through the door you also need to satisfy the need for which they have come to you, and you can’t do unless you have expertise to do so.
However, if you have a strong focus on acquiring expertise, and getting real life work, it is likely to come to you much faster than those waiting on the sidelines and blaming their own lack of expertise. Lack of expertise is not going to change magically some day after a few years, it depends on your working on this hands-on, and hustling to get your clients the results they need.
The more you do it, the better you get at it.
Do not worry all the time about how much expertise you have when you are in the initial phase, or when you are still struggling to get clients like most lawyers do.
Instead, worry about how you can create some time for research and writing every single day. I know you are busy and you do not get enough time to watch Netflix and play with your dog, but this is critical if you want to build your own reputation as a lawyer and get started with building a practice.
This needs to be done frequently – one needs to take out some time every week and publish an article every week at the minimum. As you grow older and your practice gets more established, you can slow down if you want to. However, in the beginning, going slower than this is not recommended.
There are two things that will happen as you do this.
One, you will begin to stop questioning yourself as you learn more and more in the process of writing, as well as get appreciation from others about your article. As more people begin to tell you how they have immensely benefited from your pieces, you will come to peace with the fact that your knowledge is useful and worth paying for. Also, you are constantly learning new things so you can make your articles better, and there are very few things in the world that can help a lawyer more than the habit of regular learning and development.
Imagine that many people regularly read your articles and look forward to your insights. How will that boost your confidence?
The second major transformation you can expect is growing recognition from other lawyers as well as potential clients who contact you for information and advice. With more time, this would lead to a solid reputation that will be a pillar of your practice.
Remember that this is not a shortcut to building a law practice. Writing and scholarship helps immensely, but if you fail to deliver results to your clients then this is not going to work for you. You must also be a competent lawyer for this to work at all. Law is a profession of the learned, because those who never stop learning can only succeed here.
To sum up, if you don’t start writing in your early years, it will always remain a hard task for you. And you are losing precious opportunity.
If you are at an advanced stage of your practice, it’s a great opportunity to start now and incorporate this into your routine, unless you are already a major success. In which case, please write because it will still give you unparalleled intellectual satisfaction and we would get some great stuff to read.
And please, if you need any help with any of these, just let us know. We help all our premium course students at LawSikho to implement these principles.
Do check out the courses in which we are currently taking enrollment:
This morning I got a call from a lawyer who is above 50. He did two courses from NUJS which were managed by us. He was asking what we are doing these days.
I told him about LawSikho. So no university certificates anymore? He asked.
I said no sir, we decided against working with any university. We are able to offer better courses now and ensure better results now that we have the autonomy, I said. Also there are already so many university courses. One could do a UGC recognised course from IGNOU or NALSAR or NLSIU if they want. We need to offer something more valuable than a university certificate to win in this game.
Let the universities offer the courses they can. They see these courses as a side opportunity to make a bit of money. This is not their real focus.
I don’t want to play their game. I will create a new game.
And that’s what we do at LawSikho.
Our courses are not about certificates! It’s about you being better at your work. It’s about a lawyer having competitive advantage over his peers. It’s about an entrepreneur knowing cutting edge legal insights that he can use to get ahead in his game. It’s about a business executive learning law effectively so that he can apply those lessons in his day to day work, dazzle the leadership and climb the ladder faster than the rest.
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It’s about a lawyer doing his work faster and with more aplomb and getting his clients a better outcome. It’s about a law student working hard to learn new skills every week so that he knows as much as a 2nd year associate knows after working in a law firm.
And that’s a different game. The universities are not even ready to play this game.
And that’s why LawSikho does not need any university certification to survive.
We don’t even have any competition!
And that actually makes our certificate a lot more valuable. People who get the certificate have jumped through some hoops, and the industry has noticed the impact we have been making. And that’s why industry leaders like ITC, ICICI Bank and Mahindra rely on us to train their lawyers and executives.
Who cares if you got some certificate from a university? I doubt it will make a career for you. On the other hand, a LawSikho premium course could totally jumpstart your career in a fresh new way.
So the lawyer I was speaking to said yeah, if I learn from you how to do IBC work at the NCLT how do I care if I got a certificate. I am beyond that now!
And that’s the business we are in.
Just to be clear, any course you do with us, the certificate we send to your address is issued by a private company, and has no recognition, accreditation or affiliation from any university, government or third party. And you will find it very hard to find a course that will give you more bang on the buck than our courses.
If you still want to do a government recognised course, feel free to ask us. We will even tell you which ones are better than the rest.
We have no competition with them. We are a notch above.
Here are some of the courses you could enroll in today and start learning
This article is written by Sri Vaishnavi.M.N., a first-year student of Damodaram Sanjivayya National Law University, Vishakapatanam. In this article, she analyzes the Kedarnath Bhattacharji v. Gorie Mohammad.
“Any act done at the will of the promisor’s wish is taken as the fulfilment of consideration of a contract”- this was emphasised by the Calcutta high court under the contract law in the Kedarnath Bhattacharji v. Gorie Mohammad case.
Facts of the case
In Kedarnath Bhattacharji v. Gorie Mohammad, the offended party was a Municipal Commissioner of Howrah and one of the trustees of the Howrah City Council Fund. Sometime before, it was thought to make a City Hall in Howrah, they gave the essential resources that could be raised and, provided that things existed, people were intrigued to work to perceive what memberships they could obtain.
After gaining enough membership to support the funds required to build the town hall, the commissioners including the offended party made an agreement with the defendant to build the town hall. The plans for the proposed structure were submitted and passed. But as the membership list increased the plans also expanded. Hence the expected cost of construction is increased from Rs. 26,000 to Rs. 40,000; the now increased amount of Rs. 40,000 stayed approved and obligated by the commissioners including the offended party.
The offended party though as a member and one of the commissioners obligated under the agreement to the respondent can sue the respondent for the benefit of himself and each one of those members.
Reasoning
Without making reference to the fact that he is a trustee or a Municipal Commissioner, we (The learned judge of Calcutta High Court) believe that according to the agreements of the Code of Civil Procedure, he is qualified to accelerate an activity-benefit of himself and of other people who are intrigued with him. In the event that the activity could be maintained for the benefit of all, and there was no other segment that prevented this from being done, it would fix any specialized imperfection of the situation.
At that time, the investigation is, regardless of whether it is a demand that could be maintained by all the people who were put at risk to the temporary worker in case they were totally united. Obviously, there are a considerable number of memberships that cannot be recovered. A man for unknown or different reasons inscribes his name to be a member of some charitable article, for example, but the extent of his membership cannot be recovered from him in light of the fact that there is no thought.
He approached people to buy, knowing the reason why the money should be connected, and they realized that, with the confidence of their membership, they had to acquire a commitment to pay the contractual worker for the job. Under these conditions, this type of agreement arises.
The endorser buying on your behalf says, as a result, with respect to your consent to enter into an agreement to lift or lift this structure, I agree to supply the money to pay up to the amount for which I purchased my name. That is an impeccably substantial contract and for a good thought; It contains all the basic components of an agreement that can be authorized by law by the persons to whom the obligation is acquired.
As we (The learned judge of Calcutta High Court) would see, that is the situation here, and in this sense we believe that the two consultations should be answered in the agreement, in light of the fact that, as I just said, we believe there is an agreement for good thoughts, which may be authorized by the best possible meeting, and we imagine that the offended party can implement it, since it can sue for the interest of itself and of all the people in a similar intrigue, and, therefore, we answer the two questions in the certificate, and we believe that the Judge of the Court of Minor Cause must declare the claim for the guaranteed sum, and we also believe that the offended party must receive his expenses, including the expenses of this conference.
Judgment
In the case, it was held that although the promise was for a charitable purpose and that D had no benefit, however, he is responsible for the promise made by him. So he was held liable. It was noted that in this case people were asked to knowingly subscribe to the purpose for which the money was to be applied or used.
They also knew that in the faith of their subscription they had to incur the obligation to pay the contractor for the work. The Law of the applicant, that is, the conclusion of a contract with the contractor was made at the will of the promoter, which is a good consideration in the sense of section 2(d).
Legal principle
Section 25 of the Indian Contract Act, 1872 states openly that “an agreement made without consideration is void”. In other words, the presence of consideration is essential for a contract to be valid.
According to Section 2(d) of the Indian Contract Act, 1872, Consideration for a promise is “When the promisor wishes, the fiancé or any other person has done or abstained from doing, or does or refrains from doing, or promises to do or refrain from doing something, such act or abstinence or Promise.” It is the price paid by one party for the promise of the other. The consideration is the benefit that corresponds to the parties to a contract. The consideration may be “right, interest, profit or benefit” for one of the parties. It may also be ‘some indulgence, prejudice, loss or responsibility given, suffered or assumed by the other.
In addition, we can also generally observe that the legal principle of “Revocation of unilateral promises” is also included, which is a branch of an important legal principle “Unilateral promises”. Therefore, a question that is expected from an ideal law student would be “What, are the unilateral promises?” To which the answer is such that it is a one-sided promise and is intended to induce some action.
We can also observe that the Supreme Court has correctly ruled that “A unilateral contract refers to a free promise where only one party makes a promise without any promise of return” in the case of Aloka Bose v. Paramatma Devi (2009). Therefore, we can clearly say that the promised is not obliged to act since he does not give any promise on his side, but if he carries out the desired actions by the promisor, he can fulfil the promisor.
However, in the discussion of the legal principle of “Revocation of unilateral promises,” it can be said that there is another problem related to such unilateral contracts. It is certainly true that a promise given in exchange for an act is revocable before the betrothed begins to alter his position by acting on the promise. The next expected question that appears in the mind of a genius regarding this statement is such that “Can the Contract be revoked after the fiancé has begun his performance?”
To this, I can usually explain it in the following manner. for example, the promise is to pay a sum of money if the promised walks from Lucknow to Vijayawada, can it be revoked after the fiance has embarked on the trip? The decision in Kedarnath Bhattacharji v. Gorie Mohammad suggests, although in a few words, that such revocation is impossible. The accused, in that case, was held responsible as soon as the contract for the construction of the room was concluded.
The same follows from the decision of DENNING LJ in Errington v. Errington and Woods, in which we can analyze the facts of the case that the owner of a house had mortgaged. The house was in the occupation of his son and his daughter-in-law. He told them that the house would become their property if they paid the mortgage debt in instalments and the payments began. In these circumstances, the court considered that it would be unfair if the promoter could revoke this promise to his liking.
His lordship said: “The promise of the father was a unilateral contract. A promise of the house in exchange for his act of paying the dues.” It could be revoked by him once the couple started doing it, but on the other hand, He would also stop obliging him if they left the payments incomplete and unfulfilled.
Relevant case laws
In Doraswami Iyer v. Arunachala Ayyar [2], the Madras High Court explained the principle used in the previous case on the basis that there was no simple promise to subscribe, but also a request for the promise to do an act (construction of the municipality in that case), and that where There is such a request for an act, the promise will be a simple promise and without any consideration.
The facts of the case were the repair of a temple in progress. As the work progressed, more money was required and to raise these funds, subscriptions were invited and a list of subscriptions was created. The defendant was placed on the list for Rs. 125 and it was to recover this sum that the claim failed. But no recovery was allowed.
In addition, The Hon’ble CORNISH J regarding the case has proceeded as follows: “The complaint found consideration of the promise in the following manner: plaintiffs who rely on the subscriber’s promise incurred responsibilities in repairing the temple. The question is, is this amount to consider? The definition of consideration in the Contract Law is that when the promisor has done or has abstained from doing something, such act or abstinence is called consideration.
Therefore, the definition postulates that the betrothed must have acted on something that amounts to more than just a promise. There must be some negotiation between them with respect to which consideration has been given… The promisor must have made some request to promise to do something in consideration of the promised subscription “.
In addition, the wise judge found support in the English case of Hudson, where the promise was to contribute a large sum of money for the payment of the debts of the Chapel, the promisor had died after paying a large fee, the balance was not he could recover from his executors The claim was considered untenable insofar as the fiancé had not assumed any responsibility as part of the deal with the promisor. Applying these principles to the present case, the wise judge said that there was no evidence of any request from the subscriber to the plaintiff to make repairs to the temple.
In Radhakrishna Joshi v. Syndicate Bank [3], upon the death of his father, his two children picked up a crash. His mother intervened writing to the youngest son that, in case his older brother did not pay the sum of Rs. 50 lakhs that was owed to him outside of the family assets, she would pay the same. The brother paid a part of the amount. The mother supplemented the payment to a certain extent but still had to pay the amount of the balance and therefore claimed a reduction.
The contract was part of the family agreement. It was not affected by section 25 since a purchase of family peace in such circumstances is a good consideration. A loan was granted to the child in the event that his father, who executed all the essential documents, would be considered enforceable against the father.
Conclusion
It is clearly evident from the above that the promisor cannot revoke the promise once the promisee commenced the performance or process mentioned in the contract. The Calcutta High Court, in its judgement, without a doubt stated that promise cannot be revoked after the commencement of the act as per the contract.
This article is written byPratibha Bansal, a student of Banasthali Vidhyapith, Rajasthan. She has discussed chapter 10 of the companies act, 2013 which elucidate who is an auditor, what are his duties and power, how is appointment being done and what are the required qualifications to become an auditor and procedure of his/its removal.
Who is an auditor?
If we speak in the context of taxation language, then, an auditor is a person who is authorised to check, review and verify accuracy of financial records. He also has to check that the company is complying with all the tax laws or not.
Auditors are like the security guards of the company’s capital as they have to keep a check on the company’s investment, expenses, their earning profit and loss and also have to analyse, annual accounts of the company and report as to whether they are calculated truly and fairly or not. Any fraud found by the Board or any other person after he had already audited those account will make him also liable for that fraudulent activity.
In this article, we are discussing statutory auditor appointed under chapter X of the companies act, 2013, consisting of section 139 to 148.
So, we will be starting with who can be an auditor and what is the procedure for its appointment under section 139(1)
An auditor can be an individual as well as a firm.
An Auditor shall be appointed in the first annual general meeting by the shareholders.
Whereas, before the first general meeting Board of directors have to appoint the first auditor within 30 days from the date of its incorporation and if the Board of Directors fails to appoint such auditor then it must notify the same to the members and then members shall within 90 days from the date of its incorporation in an extraordinary general meeting appoint the First auditor, office tenure will be till the conclusion of the first annual general meeting.
In case of government companies or any other company owned or controlled, directly or indirectly by any government bodies an auditor is to be appointed within 180 days from the commencement of the financial year, who shall hold office till the end of the annual general meeting.
Appointment of the first auditor in government companies according to section 139(6) is to be done within 60 days after its incorporation by Comptroller and Auditor General. Whereas, in case of failure in making such appointment, within the next 30 days Board has to make such appoint and if Board also fails then, within 60 days from Comptroller and Auditor General failure in an extraordinary general meeting(EGM) appointment of the first auditor is made.
Term of Appointment
Term of office of an auditor shall not exceed 5 years and are not eligible for reappointment in case of:-
Listed companies
Unlisted companies
A private company having paid-up share capital of Rs. 50 crore or more
All companies having paid up share capital with a threshold limit of Rs. 50 crore or more but having public borrowings from financial institutions, banks or public deposit of Rs. 50 crore or more.
In cases of all other companies, re-appointment can be done, but the term of 5 years is fXed for every appointment or re-appointment.
Section 139(2) states that appointment of an individual as auditor for one term of 5 consecutive years is only in case of the above listed four types of companies and shall not be eligible for re-appoint after completion of its term. Whereas, a firm as auditor shall be appointed or re-appointment for two or more term of 5 consecutive years.
If the person has worked as an auditor in any company for 5 years or more before the commencement of the Companies Act, 2013 then the person is allowed to work for another 3 years after the commencement of the act and if the tenure of 5 years is not completed, ie. the person has worked for only 1 year before the commencement of 2013 Act, then till the complication of 5 years of working person is allowed to work as an auditor.
Illustration
Number of consecutive years for which individual had worked before the commencement of the provision of section 139(2)
Maximum number of years he can work as an auditor for the same company after the commencement of section 139(2)
Aggregate (the period for which an auditor worked totally before and after)
1. 5 years or more
3 years
8 years or more
2. 4 years
3 years
7 years
3. 2 years
3 years
5 years
4. 1 year
4 years
5 years
Whereas, in the case of a partnership firm according to the act of 2013, working tenure of a firm as an auditor of a company is 10 years, and if the firm is working as an auditor of a company before the commencement of 2013 Act, for 10 years or more then will be given extension to work as an auditor for another three year after the commencement of such Act and if the firm has worked for less than 10 years, they will work as an auditor of the company till the completion of a term of 10 years which can’t be less than 3 years.
Illustration
Number of consecutive years for which an audit firm had worked as an auditor before the commencement of the provision of section 139(2)
Maximum number of years it can work as an auditor for the same company after the commencement of section 139(2)
Aggregate (the period for which an auditor worked before and after.
10 years or more
3 years
13 years or more
9 years
3 years
12 years
7 years
3 years
10 years
6 years
4 years
10 years
5 years
5 years
10 years
3 years
7 years
10 years
2 years
8 years
10 years
1 year
9 years
10 years
Procedure for Appointment
The audit committee will recommend the name of auditor to be appointed to the Board.
In case such a name is agreed by the Board then the same name will be recommended to members for consideration in the annual general meeting.
In case of disagreement by the recommendation of the audit committee, the same will be referred back to the audit committee for reconsideration and also stating their reason for disagreement.
Audit committee decided not to reconsider the original recommendation made by it and the Board of directors also continues to disagree then the Board has to record the reason for their disagreement and decision will be left on the shareholders.
And in case, the Board of directors agree even if the audit committee refuse to reconsider then the recommended name will get forward to members for consideration in the annual general meeting.
Once the person is decided by the member, an appointment letter i.e. an offer is made to the person considered as an auditor by the shareholders.
After the acceptance of an offer made to him, written consent for such an acceptance is to be given along with a certificate for prescribed limit and a certificating declaring whether auditor satisfies the conditions of section 141 or not.
After Completion of all the formalities, we will give confirmation, and once the confirmation is done, it becomes the duty of the company to inform auditor about its appointment.
Now there arises one question that when the person is giving his consent for the acceptance of the offer made to him then why there is a need to inform him about his appointment. So, offer is not made to only one person may be there can be two or more and among that one either an individual or an audit firm is appointed as auditor of a company, therefore, information of appointment is to be given to the person or firm appointed for the same.
The auditor is appointed in the first annual general meeting for a term of 5 years, i.e. till 6th annual general meeting as discussed above. After the appointment is done, then every year, such an appointment is reviewed by the members of the company.
If no ratification is done, auditor continues till the end of its tenure. Whereas, in case of ratification of auditor, he or it must vacate the office, and there will be a casual vacancy then, according to section 139(8) that should be filled by the Board of directors within 30 days from the date of vacancy and such appointment is subject to resignation, also must be approved by the company in a general meeting that should be held within 3 months of the recommendation. Term of office of such appointed auditor will last on the conclusion of the next annual general meeting.
In case a casual vacancy occurs other than ratification or resignation then, an appointment made within 30 days is confirmed then there will be no need for further approval of members in general meeting.
In case of government companies if there arises any casual vacancy either by resignation or by any other reason, Comptroller and Auditor General of India has to make fresh appointment within 30 days from the date of such vacancy and if he does not fill the vacancy within said period, the Board of Directors shall be making the appointment for the vacancy within the next 30 days.
Not given any notice in writing of his unwillingness regarding reappointment.
No special resolution has been passed at the meeting expressly making a pronouncement that he shall not be re-appointed.
Wherein, at any annual general meeting no auditor is appointed or re-appointed, the existing auditor continues to be the auditor of the company.
Removal of auditor before the expiry of Term
If it is found by the company that the auditor is indulged in any wrongful activity or has committed some fraud then it can seek from his removal. The procedure followed is:-
Board must pass a resolution regarding the same.
Once the resolution is passed by the Board of directors with 30 days from the passing of the resolution approval must be taken from Central Government in the form of ADT-2 regarding such removal.
After receipt of approval within 60 days, a special resolution needs to be passed in general meeting.
Once all the approvals and resolution are being made, the removal of the auditor can be possible before the expiry of his term.
Held- Delhi High Court held that for making a removal effective, an auditor who is being removed from his post must be given a reasonable opportunity to be heard according to the principle of Rule of Law which states that “no one should be condemned unheard”. Such an opportunity is given to the auditor as to make his area also clean and provide the honourable court with his clearing statements and assist the court in providing equal justice to all. It was also held that after approval of the Central Government, general body approval is necessary to make the removal effective.
Removal and Resignation of Auditor
If retiring auditor has not completed consecutive tenure of 5 years or, as the case may be, 10 years, according to the provisions of the Act, special notice shall be required for resolution at the annual general meeting appointing as auditor, person other than retiring officer or expressly making statement that retiring auditor must not be re-appointed.
Upon receipt of such notice company shall forward a copy of same to the retiring officer.
After receiving the notice retiring officer makes his representation in writing to the company(must not exceed reasonable length) and request the company to notify the same to the members of the company.
Company will unless the representation is received :
In the notice given to the members of the resolution states the fact of representation being made, and
deliver a copy of representation made by the retiring auditor to every member of the company.
And in case the copy of representation is not received due to any default on the part of the company or the person sending such representation, without any prejudice to his right, the person(retiring auditor) must be heard orally.
There are conditions in which the representation made by the auditor will not be valid and will not be read in the meeting.
In case of wrongful use of right by the auditor given to him under sub-section 4 of section 140- an application is made to the tribunal either by the company or by the person aggrieved by this wrongful act, and if the tribunal is satisfied upon receipt of the application then, his representation must not be considered.
If the tribunal is satisfied that the auditor of the company is, whether directly or indirectly indulge in any fraudulent activity then, tribunal either suo moto or on an application made to it by the Central Government or by any concerned person, may by order direct the company to change its auditor.
On application by the Central Government and after satisfying with the application, the tribunal shall within 15 days on receipt of such application make an order, that the person or firm shall not work as an auditor and Central Government will appoint another auditor in his place.
Once a final order is passed against an auditor by the tribunal under section 140, he/it must not be eligible to be appointed as an auditor of any other company for five years, and the auditor shall be liable for action under section 447.
Eligibility, qualification and disqualification of an auditor under section 141
Qualification of an auditor –
In the case of an individual– He must be a chartered accountant(practising).
In case of a firm– a partnership firm can also become an auditor but condition requisite for it is that the majority of its partners must be practising in India and are qualified for appointment as auditor, can also be appointed as auditor by its firm name.
In the case of the firm, including limited liability partnership as an auditor, only the chartered accountant partners of India are allowed to sign and act on behalf of the firm.
Clause 141(3) of the act provides a list of person or firms disqualified from being appointed as an auditor.
Body corporate is other than limited liability partnership firms.
Company’s partner or any person who is employed by the officer or employee of the company.
Illustration- Katrina is an officer at a company named Hollywood genus ltd and has a partnership with Salman named Hollywood & Bollywood partners then Salman can’t be an auditor of Hollywood genus ltd.
Any person who himself or his relative or partner is holding any securities in the company itself or in the company’s subsidiary or its holding(including a subsidiary of such holding) or associate company.
Indebtedness of a company or its subsidiary, or its holding or associate or subsidiary of such holding, in excess of Rs. 5 Lacs.
Has given guarantee or given any security in connection with such indebtedness of any third person of any company or its subsidiary, or its holding or associate or subsidiary of such holding above Rs. 1Lac.
There is an exception to this point that in such case person and his partners can’t hold any securities whereas, his relatives are exempted from such an exception and can hold securities or interest amount up to Rs. 1 lakh in the company.
And if the person’s partner holds share, then the person will also become disqualified. Once any securities or interest have been bought by the relative above the prescribed amount of Rs. 1 lakh, then 60 days time period is given to them for making the reverse of such securities and to maintain limits as specified.
Any person or firm wish to be an auditor of the company having a business relationship(as per Companies (Audit & Auditors) rules, 2014) either directly or indirectly with the company or with its subsidiary, or its holding or associate or subsidiary of such holding or associate company.
But the person can purchase the products of the company at arm’s length price then that will not be covered under business relation.
If the person’s relative is a director or is in employment as a director or key managerial personnel of a company, then, the person is disqualified.
Any person who is in full-time employment at any other place or person or partner of a firm holding appointment as an auditor and on such date of holding appointment is appointed as an auditor of more than 20 companies other than:-
Small companies
One person companies
Private companies having paid-up share capital less than 100 crores.
Any person convicted for any offence involving fraud and such conviction has been done a recently, i.e. period of 10 years has not yet elapsed from such conviction.
Person’s subsidiary or associate company or any is engaged in consulting and specialized services as under section 144.
If a person already got appointed as an auditor of the company and possess any of the listed disqualifications, then, he is deemed to vacate his office. And such vacancy shall be considered to be a casual vacancy.
Remuneration of Auditor
FXed in its general meeting.
First auditor remuneration must be fixed by the Board of Directors.
Subsequent auditors are appointed as well as their remuneration is fixed by the shareholders.
Remuneration includes – basic remuneration along with expenses incurred in connection to audit and any other facility extended to the auditor.
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Power and Duties of Auditor
Powers
Every auditor shall have access to the books of account and vouchers of the company at all times from any place.
He/it shall be entitled to get information from the officers of the company if consider necessary for doing his duty.
May make inquiry of:-
Loans and advances made by the company and terms and conditions of such loans or advances are prejudicial to the interest of the company or its members.
Transactions of the company, which are entered in the books of account and the same must be prejudicial to the interests of the company.
Whether loans and advances of the company shown as deposits or not.
Whether the personal expenses of the company have been charged to revenue account. An Auditor also has the right to inquire excess of records of all his companies subsidiaries.
Duties (Section 143 (2),(3),(4))
Shall make a report to the members about:-
Accounts examined by him.
Every financial statement required to be laid down before the company’s general meeting as per the Act.
While making the report he/she must take into account:-
Provisions of the act.
Accounting and auditing standards.
Matters which are necessary to be included in the audit report as per the provisions of the act or rule made.
His report shall also state that:-
Whether information obtained by him and its explanation is complete for fulfilling the purpose of his audit.
Whether as per law, proper books of accounts are maintained or not.
Whether report on the books of account of any branch office of the company audited by any person other them him must be sent to the companies auditor and in what manner the report has been made.
Whether the company’s balance sheet and profit loss account dealt in the report are in consonance with books of accounts and return or not.
He must also express his opinion on the examination of a financial statement made by him.
Whether his opinion on financial statements complies with accounting standards.
Is any director is disqualified from being appointed as a director as per section 164 of the act?
Whether the internal financial system of the company is adequate and also operate the effectiveness of such control system.
Any remarks in respect of maintenance of the account.
Held- Auditor’s duty is not only till restricting himself to the task of verifying arithmetical accuracy of the balance sheet but to inquire into its substantial accuracy. Thus, where the auditor failed to verify the cash balance claimed by the management and the actual cash in hand turned out to be much less than was shown in the books, he was held to be guilty according to section 147, of the act for not performing his duty, as provided under section 143.
Supreme Court held that in the matters of technical nature, like- the valuation of stock-in-trade, the auditor may rely upon a skilled person and was not held liable for any wrong or fault in the work of that qualified person, unless there was suspicion of something wrong. But this can’t be used as a defence by auditor and part of his duty can’t become the work of any skilled person.
Like in the present case, respondent 1 has not made a disclosure to the beneficiaries of provident fund in the statement of account about that significant part of the cash in hand represented as uncashed cheques.
Therefore, the court held that there was a breach of duty on the part of respondent 1 and charged with professional misconduct for the same.
Section 143(10) states some of the additional matters that need to be stated in the case of specified companies.
Section 146 companies act,2013, states that auditor, unless exempted, has to attend the general meeting, and the company must forward the notice of the general meeting and any other communication to the auditor also.
He possesses the right to be heard in the meeting in regards to any part of the business which concern him as the auditor
Held– Court makes a declaration that nowhere in any provision it is stated that a holding company can’t recover for the damages of loss in value of its subsidiary, and the loss which has occurred is the result of a breach of duty owed to the company itself. Auditors of the subsidiary company must be aware of the fact that their report is the only basis on which true and fair picture of all the companies in the group will be ensured. Therefore it became their duty to check that true and fair aspect of the subsidiary company’s accounts. Thus, the holding company had director right of action against the subsidiary’s auditor
Fraud by Auditors
While performing his duty as an auditor if he has reason to believe that offence of fraud in respect of the prescribed amount is being committed then he/it must report the same to the Board within 2 days and within 45 days Board must give a reply on the same and if the response is not given by the Board then within 15 days report the offence of fraud to Central Government if the amount of fraud is more than 1 crore(Companies audit and auditors rules 2015). And if it is less than 1 crore, then he must report the same to the Board within 2 days, and Board’s reply on the same must be viewed on the Board’s report.
Held– Court held that where the auditor had discovered fraud being done by such an officer who is at the post where he can continue doing the same. Then, it becomes the duty of the auditor to report the condition to the company’s management and not to wait till submission of their report.
Cases in which fraud be reported to the Central Government or not are:-
Fraud in the subsidiary company
While auditing the holding company auditor found fraud in the accounts of the subsidiary company, then the same will not be reported to the Central Government.
Exception- if such an offence of fraud by the officer or employee of the subsidiary company is affecting the holding company, then the same will be reported to the Central Government.
Amount of individual fraud
Amount of individual fraud must be Rs. 1 crore or more and not the collective amount of different of fraud will be reported to the Central Government.
Fraud of less than 1 crore
If fraud of 70 lakh has been found and it is believed that another 40 lakh will also be found soon, then it must be reported to the Central Government.
Conspiracy of fraud
If the auditor overheard any conspiracy regarding fraud(not yet committed) can’t be reported to Central Government.
Previous year fraud
If the auditor is appointed from the year 2015-16 and while making audit of the same year he found fraud in the previous year in which some other person/firm was auditor then he/it must not report the same to the Central Government and in case statutory auditor didn’t find any fraud but tax auditor find the fraud of more than Rs.1 crore then he must not report the same to the Central Government but can state the same in his report.
In the case of Government Companies Audit
An Auditor is appointed by the Comptroller and Auditor General, and he must submit his audit report which includes directions, action taken etc. to the comptroller and auditor general.
Comptroller and Auditor General will check the report and direct for supplementary audit and will comment on the supplementary audit report.
Then comment of Comptroller and Auditor General on supplementary audit report along the supplement audit will be sent by the company to the members and also place both the documents in annual general meeting.
Services not to be Rendered by an Auditor
There are some services provided under the act that should not be rendered by the auditor himself, by is relative or any other person associated with him.
Section 144 of the Companies Act, 2013
He/it must render only those services which are approved by the Board of directors or by the audit committee. But if the auditor is asked to provide any of the services mentioned in section 144(1)(a-i) by the Board or audit committee then, must not render such services on their demands also.
In case of individual as an auditor he himself, his relatives or any other person connected or associated with such individual or any other entity in which individual has significant influence or whose name or trademark or brand is used by an individual must not render such services.
For example– If Virat Kohli is an auditor of company AZB ltd. So viral Kohli’s relatives, his teammates, or brand like puma coz Virat Kohli is their ambassador, or his fans must not render those which are exempted under section 144(1).
In case of a firm as an auditor, then the firm itself or by any of its partners or through its, parent(holding), subsidiary or associated entity, or through any other entity in which firm or its partners have significant influence or control, or whose name or trademark or brand is used by the firm or any of its partners must not render such services.
Before the commencement of 2013, companies act if an individual or firm is an internal auditor and statutory auditor of the company then after the commencement of the act he/it has to choose any one position among the two and will work only on those services which are specified for that position under the act.
Lastly in case of the auditor has rendered any other service as specified may lead to his disqualification.
Punishments for non-obedience of the provision of chapter X of The Act
Section 147 of Companies Act, 2013
Section 139 to 146 is contravened
Company will be punishable with a minimum fine of Rs. 25 thousand which may extend to Rs. 5 lakh and officer in default will be punishable with imprisonment of 1 year and fine, minimum for Rs. 10 thousand which may extend up to 1 lakh or both
Fault by auditor
If an auditor has acted in contravention to the provision of section 139,143,144 or 145 then fine of the minimum amount 25 thousand which may extend up to 5 lakh must be imposed.
In case any infringement is done with full knowledge and intention to defraud the company or shareholders or creditors or tax authorities then the auditor will be punished with imprisonment up to 1 year and a fine of amount 1 lakh which may extend up to 25 lakh or both.
If an auditor is convicted he has to do follows.
Make refund of remuneration amount.
Make a payment of damages.
Items of cost audit to be specified by Central Government
Section- 148 of Companies Act, 2013
Audit of companies engaged in production relating to utilisation of material and labour is demanded by Central Government, and cost audit of such companies are performed by cost and work accountancy which is practising as per the standards of cost auditing.
Such cost auditor will be appointed by the Board of directors.
These Board of directors must submit their report to the Central Government within 30 days.
Applicability of cost audit
Cost audit will be important in regulated companies whose individual product turnover is equal to or more than Rs.25 cr and its overall turnover must be equal to or more than Rs.50 Cr.
For example- there is pharma company Cipla whose produces approx 50 products and among those medicines and products 1 product for say inheller are on very high demand so, that inhaler turnover must be more than or equal to Rs.25 Cr. and a total turnover of Cipla company must be equal to or more than Rs.50 Cr.
Cost audit of non- regulated companies mentioned in below table must have an overall turnover of either equal to or more than 100 cr, and individual product turnover must be equal to or more than 35 cr for which coast audit must become important.
Exception
Special Economic Zone Organisation– foreign companies coming in India who make more and more export from India and generating foreign currency in India.
75% Export– Indian companies whose 75% of business is running on the cost of exports like- Infosys.
Submission of Cost Audit Report
An auditor must submit the report within 180 days from the date of closure of the financial year to the Board of Directors.
Board of directors after examination of the report along with their explanation on the qualification of the content of the report, within 20 days from the date of receipt of cost audit report must forward it to the Central Government.
Default in compliance of section 148
Company and the officer at fault will be punished according to the provisions of section 147 clause 1.
Faulty cost auditor will be punished in the manner provided under clause 2,3 and 4 of section 147.
Conclusion
After going through the whole content or the article explaining chapter X of the companies act, 2013. It will become more accessible for all of us, to now compare and find that what all amendments were made in the act of 1956 in regards to an audit and auditor.
So, firstly the list of disqualification for appointment as an auditor under section 141 is elaborated as in the earlier section 226(3) contain a lesser amount of disqualifications.
Secondly, in the earlier Act, there was no specific provision stating as 5 years working tenure for an individual as auditor and 10 years for a firm as an auditor. Whereas, in the present act, section 139(2) clearly talks about the tenure of an auditor.
Thirdly concerning the disqualification of an auditor, there was no provision for disqualification of an auditor in the earlier act whereas, in 2013 act under section 141 there is a list given for disqualification of an auditor.
There are many other minor amendments which are being made by the legislature to make the concept of audit and auditor more clear and scrub off the loopholes present in the act.
This article has been written by Pankhuri Anand, a student of Banasthali Vidyapith, Rajasthan. This article discusses the effect of appearance and non-appearance of parties to the suit during a proceeding in a civil court.
Introduction
Every proceeding as far as possible must be carried on in the presence of parties as a general principle of law. Order IX of the Code of Civil Procedure lays the laws regarding the appearance of parties and what are the consequences of the non-appearance of parties.
The appearance of parties to the suit
As stated under Rule 1 of Order IX of the Code of Civil Procedure, the parties to the suit are required to attend the court either in person or by their pleaders on the day which has been fixed in the summons. If the plaintiff or a defendant, when ordered to appear in person, do not appear before the court and neither show the sufficient cause for his non-appearance, the court is empowered under Rule 12 of Order IX as follows.
If the plaintiff does not appear, dismiss the suit.
If the defendant does not appear, pass an ex-parte order.
When neither the plaintiff nor the defendant appears before the court when the suit is called for hearing, then the court is empowered to dismiss the suit under Rule 3 of Order IX. The dismissal of the suit under this rule does not put a bar on filing a fresh suit on the same cause of action as per Rule 4.
The plaintiff can also apply for setting aside the dismissal if he is able to satisfy the court that there was sufficient behind his non-appearance. If the court is satisfied with the cause of non-appearance then it may set aside the order of dismissal and schedule a day for the hearing of the suit.
The appearance of the plaintiff
When only the plaintiff appears but the defendant does not appear, then an ex-parte order can be passed against the defendant. But, the plaintiff has to prove that the summon was served to the defendant.
If service of the summons is proved then only the court can proceed for an ex-parte against the defendant and the court may pass a decree in favour of the plaintiff. This provision applies only for the first hearing and not for the subsequent hearings of the matter and the same has been held in the case of Sangram Singh v. Election Tribunal.
Even while passing an ex-parte order it is the duty of the court to secure the end of justice even in the absence of the defendant. In the case of Maya Devi v. Lalta Prasad, it has been held by the Supreme Court that -It is the duty of the court to ensure that statements in the plaint stand proven and the prayers asked before the court are worthy of being granted. This provision of passing ex parte order cannot be passed when there are more than one defendants in the case and any of them appears.
Appearance of defendant
The provisions laid down to deal with the appearance of only the defendant has been laid down from rule 7-11 of Order IX. When the defendant appears but there is non-appearance of the plaintiff, then there can be two situations:
The defendant does not admit the claim of the plaintiff, either wholly or any part of it.
The defendant admits the plaintiff claim.
If the defendant does not admit the claim of the plaintiff, then the court shall order for dismissal of the suit. But, when the defendant admits completely or any part of the claim made by the plaintiff then the court is empowered to pass a decree against the defendant on the ground of such admission and for rest of the claim, the suit will be dismissed.
Dismissal of the suit of the plaintiff without hearing him is a serious matter and it should not be adopted unless the court gets satisfied that in the interest of justice such dismissal is required, as cited by Beaumont, C.J. in the case of Shamdasani v. Central Bank of India.
Do the same provision applies to the non-appearance of the plaintiff due to death?
When the plaintiff does not appear because of death, the court has no power to dismiss the suit. Even if such order is passed it will amount to a nullity as held in the case of P.M.M. Pillayathiri Amma v. K. Lakshi Amma.
Application to set aside the dismissal
When the suit has been dismissed on the ground of non-appearance of the plaintiff then he can make an application to set aside the order of dismissal. If the court is satisfied with the reason of non-appearance as a sufficient cause then the court can set aside the order dismissing the suit and fix a day for the proceeding of the suit.
Sufficient cause
For considering the sufficient cause of non-appearance of the plaintiff the main point to be considered is whether the plaintiff really tried to appear on the day which was fixed for hearing or not. When sufficient cause is shown by the plaintiff for his non-appearance, then it is mandatory for the court to reopen the suit. In absence of sufficient cause, it is upon the discretion of the court to set aside the dismissal or not as held in the case of P.K.P.R.M. Raman Chettyar v. K.A.P. Arunachalam Chettyar. Sufficient cause depends upon the facts and circumstances of each and every case.
In the case of Chhotalal v. Ambala Hargovan, the Bombay High Court observed that if the party arrives late and find its suit dismissed due to his non-appearance then he is entitled to have his suit or application restored with the payment of costs.
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When summon is not served
Rule 2 to 5 of Order IX lays down the provision for the situation when the summon is not served to the defendant. One of the fundamental law of procedural law is that a party must be given a fair opportunity to represent his case. And, for this, a notice of the legal proceedings initiated against him is obligatory. Therefore, service summons to the defendant is mandatory and it is a conditional precedent.
When there is no service of summons or it does not give him sufficient time for effective presentation of the case then a decree cannot be passed against him as held in the case of Begum Para v. Luiza Matilda Fernandes.
Rule 2 of Order IX also holds that when the plaintiff fails to pay costs for service of summons to the defendant then the suit may be dismissed. But, no dismissal can be made even in the presence of such failure if the defendant appears on the day of hearing either in person or through his pleader. However, the plaintiff is entitled to file a fresh suit when the suit is dismissed under this rule. and, if the court is satisfied that there is a reasonable reason behind such failure to pay costs then the court may set aside the order of dismissal.
When the summon is returned unserved and the plaintiff does not apply for fresh summons for 7 days from which the summon is returned unserved by the defendant or any of the defendants, then the court can dismiss the suit against the defendant or such defendants
When the summon was not duly served to the defendant is not proved then the court can direct to issue a fresh summon to the defendant for service. When the service of the summons is proved before the court but the time prescribed in the summon is not sufficient for him to answer on the day which has been fixed, then the hearing can be postponed by the court to a future date and notice will be given to the defendant.
Ex-parte Decree
When the defendant is absent on the day of the hearing as fixed in the summon an ex-parte decree can be passed. The ex-parte order is passed when the plaintiff appears before the court on the day of the hearing but the defendant does not even after the summon has been duly served. The court can hear the suit ex-parte and give ex-parte decree against the defendant.
An ex-parte decree is a valid one and it is not null and void but can be merely voidable unless it is annulled on a legal and valid ground. An ex-parte can be enforced like a bi-parte decree and it has all the forces as a valid decree as held in the case of Panduranga Ramchandra v. Shantibai Ramchandra.
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Remedies against an ex-parte decree
When an ex-parte decree has been passed against a defendant, the following remedies are available to him.
He can apply to the court under rule 13 of Order IX for setting aside the ex-parte decree passed by the court.
He can appeal against that decree under section 96(2) of the Code or, prefer revision under section 115 of the code when no appeal lies.
For setting aside an ex-parte decree an application may be made by the defendant. An application to set aside decree can be made to the court passing that decree. There are certain rules to be followed for setting aside an ex-parte decree and if the defendant satisfies the court with sufficient reason, then only the ex-parte decree which has been passed can be set aside.
The limitation period for making an application for setting aside an ex-parte decree is of 30 days.
The grounds on which an ex-parte decree can be set aside are:
When the summons has not been duly served.
Due to any “sufficient cause”, he could not appear on the day of the hearing.
Sufficient Cause
The term sufficient cause has not been defined anywhere but as held in the case of UCO Bank v. Iyengar Consultancy, it is a question which is determined upon the facts and circumstances of the cases. The test to be applied for this is whether or not the party actually and honestly intended to be present at the hearing and tried his best to do so. There are several instances which have been considered as sufficient cause such as late arrival of the train, sickness of the council, the strike of advocates, death of a relative of party etc.
The burden of proof that there was a sufficient cause of non-appearance is upon the defendant
Conclusion
The appearance and non-appearance of parties have an effect on the case and whether it will be carried on for the next hearing, dismissed or an ex-parte decree will be given. When none of the parties appears then the suit can be dismissed by the court. The suit is carried on for the next hearing only when both parties appear before the court.
If the plaintiff appears before the court but no defendant appears on the day of hearing then the court may pass an ex-parte decree against the defendant. The situations when there is non-appearance on the behalf of the plaintiff then the suit can be dismissed if the defendant denies the claim of the plaintiff and if he admits to any claim the court can pass an order against him on the ground of his admission.
When any suit is dismissed or an ex-parte order is passed then it can also be set aside if there is sufficient reason behind the absence of a party. If the court is satisfied with the reason of absence then it may set aside the order of dismissal or an ex-parte order. During all these procedures the court must keep in mind that nowhere any miscarriage of justice is done during the dismissal or while passing an ex-parte order.
This article is written by Saumya Saxena, a third year student at Symbiosis Law School, Noida. This article gives an overview of the Judicial Services Exam in India and discusses All India Judicial Services (AIJS) in detail.
Brief History of All-India Judicial Services
Originally, the Constitution of India didn’t have any provision for the All-India Judicial Services (AIJS), but later Article 235 was introduced which said that the lower judiciary was subordinate to the High Court. In 1958, the Law Commission (1st, 8th and 11th, 116th) first mooted the idea to formulate an All-India Judicial Services (AIJS). The Chief Justices Conferences held in 1961, 1963 and 1965 encouraged the creation of an AIJS but the idea was opposed by some High Courts as it took away their powers of recruitment of lower judiciary. The state governments are responsible for the recruitment of the lower judiciary which is either done by the High Courts or the State Public Service Commissions.
In 1976, the Swaran Singh Committee gave its recommendations and according to that Article 312 (which dealt with the All India Services) was modified to include the judicial services except the ones below the rank of a district court judge.
With All-India Judicial Services, the recruitment of the District Court judges would become centralized as the candidates would be selected after clearing the all-India examination and then allotment would be done for each State. It is a matter of debate whether this method of recruitment will prove to be transparent and efficient in finding out the best talent in the legal field in India.
In 2012, the ruling UPA party forwarded the proposal again but it was rejected because of the opposition from the Chief Justices of the High Courts contending that it was a violation of their rights.
Need for All-India Judicial Services
Huge vacancy of judges
At present, there are more than 5000 posts which are vacant in the lower judiciary across India.
Delay in recruitment
There are almost 3 crore cases pending in the lower judiciary and the primary reason for that is the delay in conducting the exams by the states.
Insufficient finances with the state governments
State judicial services do not attract the ‘best talent’ as the state governments fail to provide high salaries, rewards and compensation.
Shortage of quality judicial officers
There has been a continuous decline in the quality of delivery of justice which in turn affects the higher judiciary.
Discretion of a narrow body
The process of selection of a judge is a responsible job, it should not be left at the discretion of a small collegium no matter how judicious it is.
Subjectivity in the process
Currently, the judicial appointments suffer subjectivity, corruption and nepotism on the part of the collegium. Hence, there is an urgent need to establish an impartial system of recruitment so as to reflect the social reality and diversity of the country.
Objections to All-India Judicial Services
Weakens separation of power
According to Article 235, the High Courts have the control over the state judiciary. If the responsibility of recruitment of state judiciary is shifted from High Courts to Union government through AIJS, then the independence of the judiciary would be undermined.
Problem of local language
The District Court and Sessions Court Judges communicate in the State language and it would be difficult for AIJS officers to adapt themselves with the local language and the dialects which in turn would affect the delivery of justice.
Problem of local laws
AIJS fails to take into account the issue of local laws and customs which varies widely across the country. Thus, the training expenses of the selected judges would increase.
Affects only the tip of the iceberg
AIJS does not address the problem of low pay and the lack of inadequate judicial infrastructure including the courts and the training centres for officers in the states. AIJS does not propose any changes for ensuring better representation of district court judges in the High Courts despite the fact that less than one-third of the seats in the High Courts are occupied by the district court judges.
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Benefits of All-India Judicial Services
Accountability and Transparency
AIJS will make the judiciary more professional, accountable and equitable.
Recruitment of the best talent
AIJS will ensure that the method of recruitment is transparent and efficient, so that the best talent in the legal profession is attracted. Also the possibility of promotion of the district court judges to the High Courts at an early stage would increase as they currently join the High Courts much later than the judges from the Bar.
Checks pendency of cases
Streamlined and objective recruitment process would ensure regular stream of good quality judicial officers for vacant posts, which would reduce pendency of cases.
Overall efficiency
A well-organized system of recruitment of the judicial officers will attract the young talent from the law schools and young, well-informed judicial officers at the level of additional district judge will make a difference. As the additional district judges and the district judges can help in making the judicial system work more efficiently.
Way Forward
AIJS will attract the capable judicial officers which in turn will lead to speedy disposal of cases, ensuring the right decisions which do not lend themselves to appeal and thereby reducing the number of appeals. The quality of lower judiciary is very crucial for rejuvenating the Indian judiciary.
AIJS is facing obstructions from the administration and the High Courts, even though the Supreme Court has emphasized on the establishment of AIJS twice.
Therefore, AIJS should be formulated in such a manner that all the shortcomings are taken care of so that it proves to be effective.
Language should not be a barrier because if the civil servants can learn the local language of the state they are posted in, then the judicial officers can also do that.
The problem of pay scale and career growth should be looked after.
After the completion of the selection process, the judicial officers should be provided with good training to handle the job. A proficient judiciary is the need of the hour and it is possible only with a competitive recruitment process.
Speedy disposal of cases is the concern of all the members of the society. This is possible only if there are adequate judges. Adequate judges can be made available only if the recruitment is done at large through AIJS just like the recruitment of IAS, IPS and other civil services. Hence, the AIJS should come into existence without any delay.
A Career in Judiciary
A career in the judiciary is a good option for law graduates who are inclined towards public service and have faith in the system of justice. The hierarchy of the judicial system in India is as follows- the Supreme Court at the top followed by the High Courts of each State, followed by the District Courts.
Roles and Responsibilities of a Judge
The judicial system consists of five hierarchies namely- Supreme Court, High Court, District Court, Magistrate Court and Munsiff Court. Judges are assigned to different court departments on the basis of their qualification. Some judges operate in their private offices, courtrooms and law libraries. Most of the work includes reading legal briefs, studying legal issues, conducting hearing with lawyers and giving the judgment.
The responsibility of the judges varies depending on their jurisdiction, the major responsibilities of a judge are:
Establishing laws and implementing rules of procedure.
Conducting hearings/trials in a fair manner and presiding over them.
Giving advice to the attorneys and litigants regarding issues and conduct related to the proceedings of a case.
Resolving issues between the attorneys.
Reading documents on motions and pleadings to ascertain facts and arguments.
Hearing the attorneys presenting their cases, plaintiffs making allegations and the witnesses.
Discovering the evidence provided by the defence and the prosecution.
Determining the evidence to find out if it confirms the charges.
Evaluating the evidence to decide whether the accused is guilty in the eyes of law.
In case of civil trials, judges decide the legitimacy of a petition and then estimate the charges and then grant order for compensation to the plaintiff accordingly.
In case of criminal trials, the judge determines whether to hold offenders in prison pending trial or set bail and other requirements for release.
In case the accused is convicted, the judge gives the sentence. The judge may impose a fine or send him to jail or both.
The Munsif/Sub-judges deal with civil cases, while the Magistrate deals with criminal cases. These officers can get promoted to District and Sessions Judge on the basis of their seniority and merit. Further, they can be promoted to the office of a Supreme Court judge or High Court judge.
Judicial Services Exam
Judicial Services Exam, popularly known as the PCS (J)-Provincial Civil Service-Judicial Exam are entry-level tests for law graduates to become a member of the subordinate judiciary. These exams are conducted by a state judicial department to hire for subordinate judicial services. These exams focus on Indian legal and constitutional governance and history, current developments of national and international interest, and analytical aptitude and skills of the candidate. Around 50,000 to 60,000 candidates appear for Judicial Services Examination every year with only 15-20% clearing the exam.
The candidates who wish to build a career in public service can clear the Judicial Services Exam and perform the following job roles:
Magistrate
District and Sessions Judge
Sub-Magistrate
Public Prosecutor
Attorney General
Solicitors
Advocate General
Notary
Oath Commissioner
Eligibility Criteria
Only Indian citizens are eligible to apply for the Judicial Services Exam.
Services
Educational Qualifications
Experience
Age
Lower Judiciary Services
A degree in LL.B and enrollment as an advocate under the Advocates Act, 1961.
No experience required.
21 to 35 years.
Higher Judiciary Services
A degree in LL.B
A minimum of seven years of experience in litigation.
21 to 35 years.
Note- The age limit may vary from state to state and there is age relaxation for the candidates belonging to the reserved categories.
Structure of the Judicial Services Exam
The Judicial Services Exam is conducted in the following three stages:
Preliminary Examination
It consists of objective type questions and serves as a screening test for the mains examination. The marks scored in the preliminary examination are not considered while preparing the final merit list. The minimum qualifying marks may vary from state to state.
Mains Examination
It is a subjective type examination. It consists of three to four papers. The marks scored in the mains examination are considered while preparing the final merit list. The minimum qualifying marks may vary from state to state. Candidates equal to three times the number of vacancies are called for the interview.
Viva-Voce/ Personal Interview
This is the final stage in which the candidate is evaluated on the basis of general knowledge, personality and other factors. This stage carries 50 marks out of which the candidate needs to secure a minimum of 20 marks to get selected.
States Conducting Judicial Services Exam
In India, 24 states conduct the Judicial Services Exam, each state has its own eligibility criteria, exam pattern and pay scale. The states conducting the exam are listed below:
Arunachal Pradesh
Assam
Bihar
Chhattisgarh
Goa
Delhi
Himachal Pradesh
Haryana
Jammu & Kashmir
Jharkhand
Karnataka
Kerala
Madhya Pradesh
Maharashtra
Manipur
Mizoram
Nagaland
Odisha
Punjab
Rajasthan
Sikkim
Uttarakhand
Uttar Pradesh
West Bengal
Tips for Preparing for Judicial Services Exam
The first and the most important thing is to stay consistent and to make a plan for preparation which includes a well-planned timetable which must be followed with utmost sincerity.
There should be a different approach for the preparation of each stage. For example, the candidate is required to have exhaustive knowledge of the provisions of various laws for the preliminary examination, whereas the main examination requires a selective study pattern based on the frequently asked questions, it can be done by solving previous year questions.
Reading newspapers, law journals and reports presented by the Supreme Court and the High Courts will help in gaining legal general knowledge. Candidates can also take the help of recognised books and magazines for studying legal general knowledge.
Solving the previous years question papers of different states will help in developing time-management skills and understanding the exam pattern.
If you know a judicial officer who has recently been selected, seek their guidance, it can be very helpful for your preparation.
This article is written by Rachit khamparia, a student of third year from Institute of Law, Nirma University. In this article the author discusses about the basic human rights.
Introduction
Rights are the most essential conditions for overall development of a man in the society. Rights are given to human to help him in increasing the value of his life. Every man born in this planet comes up with certain rights. To live a life in a proper manner he should be protected by law. To avoid any discrepancies, human rights were formed by the international body and with the consent of every member these laws were made obligatory to every state party. The international covenant on civil and political rights (ICCPR) was formed and introduced the concept of non derogable rights. They made a clause that even in the state of emergencies in a nation there would be certain rights which has to be provided to its citizen at any cost and they cannot be suspended. They are the basic rights, most fundamental in nature. The author with this research paper has explained the concept of rights, human rights and why they were introduced to the world. The research would further explain about non derogable rights and which are the right qualified to be non-derogatory in nature. The researcher would further explain that why these certain rights are only included as non-derogatory rights and what are the stand of these rights in our Indian constitution. The author is with the view that these rights are very important and should be there for every individual.
What Are Rights?
Rights are claimed by an individual and when the claim has to be rational, universally applicable and which works for the common good of the society, has to be recognised by the society and backed by the state through making applicable laws and assuring it through legislation. No one has the right to take your certain rights not even the government. The government is duty bound to give its citizen certain rights and should make sure that no one would breach it. The idea of right was first suggested by English professor John Locke in 17th century. He gave a theory that every human is born with inherent right and they are natural to human being. According to Locke, right to life, liberty and property are inherent rights of the human being and government plays a vital role in preserving these rights to their citizen and if they fail to do so the people have a right to vote out the government.
Human Rights and the U.N Bodies
The concept of human right was evolved in 539 B.C. when the city of Babylon was subjugated by the king of ancient Persia, Cyrus. He stopped slavery and also endorsed citizen to follow their necessary religion and outcasts any kind of racial discrimination. Human rights are those rights which provide basic standard to humans to live with dignity and maintain status quo in the society. It gives those basic needs and livelihood. These rights are intrinsic in nature and should be provided to all human beings without any discrimination on the basis of religion, caste, colour, language etc.
Two world wars led to the foundation of united nation, which was formed to maintain the peace between the countries and protect people from any kind of atrocities faced by them. The UN made a body of law known as the charter of the United Nations and the universal declaration of human rights this created a mandate to the government to provide their citizen necessary rights and also protect them from any outrages. With the forming of UDHR in 1948 and also establishing two important covenant which were International Covenant on Civil and political rights (ICCPR) and International Covenant on Economic, Social, and Cultural Rights (ICESCR) which were treated as international law after their enforcement on 1976 they were the new face of human rights and any violation of the rights guaranteed by these covenant would be dealt by international laws in any part of the world.
The ICCPR
The international covenant on civil and political rights (ICCPR) was formed to protect certain political and civil rights of every individual human living in the planet. This was adopted by UN in 1966. Human rights committee monitors the ICCPR. The extensive range of rights are included in this covenant ranging from right to life, freedom of thought, freedom of religion, freedom from slavery, political participation and even equality and non- discrimination. The covenant is divided into 6 parts and has 53 articles. Under article 3, it is the duty of the state parties to covenant to make sure that all civil and political rights given in present covenant should be vividly enjoyed by all man and woman.
Non Derogable Rights
Article 4 states that when there is an emergency in any states parties to the covenant they can derogate from the duties prescribed under covenant. So, basically the state has the right to suspend rights given under covenant but it also has certain obligation that the public emergency can only be proclaimed when there is threat to the life of nation and it should still follow certain international law and should not involve in any kind of discrimination on the basis of caste, ethnic group, religion, language, colour etc. but article 4(2) puts certain obligations on clause 4(1). It states that” No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision”This clause specifically states that the rights prescribed under mentioned articles in 4(2) cannot be suspended or derogated even in emergency situation and state has an obligation to allow its citizen to enjoy these 7 non-derogable rights under any circumstances. This clause has developed the concept of non derogable rights and it is in relation with core human rights and comprises mostly of first generation rights.
These are the 7 rights mentioned under ICCPR which cannot be suspended in emergency situation
“right to life (art 6)
freedom from torture or cruel, inhuman and degrading treatment or punishment; and freedom from medical or scientific experimentation without consent (art 7)
freedom from slavery and servitude (arts 8(1) and (2))
freedom from imprisonment for inability to fulfil a contractual obligation (art 11)
prohibition against the retrospective operation of criminal laws (art 15)
right to recognition before the law (art 16)
Freedom of thought, conscience and religion (art 18).”
Article 6 of ICCPR
Article 6 talks about protecting right to life through law and as per article 6 the freedom to live is an inherent right to any individual and no one is allowed to snatch that right from him without following legal guidelines. Even the legal way has many obligations to do it. First of all if the country has death penalty as a maximum punishment for some crime then the crime should be very serious in nature to give punishment of death penalty. Any person who has given death penalty shall have the right to commutation of the sentence. It should be given in all cases. No person below the age of 18 years or a pregnant woman should be given the punishment of death penalty.
Right to life is the most absolute, precious, holy right for the citizen. It is the primary right, to be precise it lays the foundation of all the fundamental rights. A human without having a right to life is just like an animal. Living is inherent in nature no other human provide you this right but you take it from god, he gives you birth, so no one can snatch it away from you nor you can breach other human right to live. Today right to life is not just about existence or just being alive but it’s also about living with dignity and comfort. In India, article 21 of the constitution provide right to life with dignity to its entire citizen. But whether this right is guaranteed to citizen in emergency was developed over the years. A.D.M. Jabalpur v. Shivakant Shukla was the case which dealt with bringing article 20 and 21 free from emergency situation and justice Khanna and also supported to keep article 21 free from emergency provision. With this 44th amendment came into force which altered article 359 of the Indian constitution and declared that article 20 and 21 would not be suspended even during emergency declared in India.
Talking about clause 2 of article 6 which discuss about death penalty and when it should be given. To give or not to give capital punishment is a big and never ending debate. Many countries like Austria, Germany, France, Belgium has abolished the use of capital punishment and even UN also says that we are not defending the capital punishment and we should strive towards overall development of the mankind and our aim is to promote progress and also to protect men from prejudices. Article 6 of ICCPR does not say that capital punishment should not be used. They have left it for the discretion of the country but it specifically mentions that the misuse should not be there and the punishment of death penalty should only be given to rarest cases. India’s laws are very much in agreement with international covenants. Frankly speaking, death penalty should be abolished and why this clause is non derogatory is that it does not serve the end of justice and also that no human have the power to give life to any person, not even any state or government can give life then who are we to take someone life. We don’t have any right to take others life.
Article 7
Article 7 of ICCPR states that every human should be protected from cruel, humiliating and also no one without his consent should be used for some medical or scientific experiment as it used to be done by Nazis. Again, certain threat to a country does not justify anyone to mistreat humans or do any sort of alteration with their body. Doing any kind of cruel activity or giving any kind of serious punishment would eventually lead to threat of their life and would also kill that human. Body of a human functions in a certain way, and any kind of external substance will hamper the biological process of body and the natural function would suffer leading to cause death and no one is allowed to play with human body as no state is also permitted to take anyone life.
Article 8
With this article slavery and any kind of human trade that is trafficking of human body is abolished and against human rights. Under no circumstances it should be practiced as no one has an authority over other human body. Keeping human as a slave is the most degraded experience which one can give to another human. A person is treated worse than an animal and he is forced to work for more than his body can bear which makes him weak and also threaten his life. He is not even payed for the work which does. Article 23 of Indian constitution, prohibit any kind of human trafficking and forced labor and practising it would amount to criminal activity. Forced labor is not as such defined in constitution but Supreme Court in several judgements gave the definition of under paid. S C states that no one would like to work if he is not paid the exact amount which the work demands and if he still do that it means he is under some compulsion which is forcing him to do it.
Article 11
This article gives a right to person to not to put behind the bars if he is not able to fulfil his contractual obligation. Just because someone is poor doesn’t necessarily puts him in the jail. It is unjust as poverty is not under his control. In the case of jolly George Verghese v. Bank of Cochin, Supreme Court held that imprisonment of not fulfilling contractual obligation would amount to violation of article 21.
Article 15
The article 15 is about retrospective laws. It is also a fundamental right for Indian citizen under article 20(1) talks about ex post facto laws. It is inhumane in nature, a person perform any kind of activity with relation to the current laws and any person living in a society always strive for peace and when there are laws it is the guiding light to them. If doing certain activity is legal now but after 5 years it becomes illegal then, only those people should be punished for that act when they willingly did that act, they were having knowledge that doing this would amount to a crime. A person intention is always considered to prove his guilt.
Article 16
Article 16 gives you the right to be recognized by law. A person without identity is ruthless and more inclined for violence. Law protects them from every suffering they face and if they are not identified by law then the human would face identity crisis. A country has its citizen and there are certain rights which are only enjoyed by their citizen and if you are an outsider then sometimes living would be difficult as u cannot enjoy everything given by laws. In emergency situation if a law does not recognized a person then this thing can be misuse as state would not be under any obligation to provide them basic need and other non-derogatory rights prescribed under ICCPR.
Article 18
It gives freedom to person to enjoy any kind of religion which he believes to be good to him. It is his personal choice and state interfering in this matter is violation of his human rights. Even in the state of emergency his freedom to practice religion should be protected as human follows certain religion greatest belief.
Conclusion
The difference which lies between animal and human is that we human are following guidelines and we with consent of all human make laws and follow it. When a human is born he comes with certain inherent right and no one is allowed to take that right as these rights are given to him by the god. Non derogable rights protect the basic and fundamental rights of human and it safeguard them from volatile nature of wars.
A prenuptial agreement also referred as Antenuptial Agreement or Premarital Agreement, generally abbreviated as Prenup, is a contract entered into prior to marriage, civil union or any agreement prior to the agreement which by the people intending to marry or entering into a different contract with each other.
What is Postnuptial Agreement?
A postnuptial agreement, which is sometimes also known as a Post Marital Agreement, popularly known as postnup is a legal instrument designed for couples who have already been married or in a civil union. Similar to a prenuptial agreement, a postnuptial agreement establishes how the couple’s assets will be divided in the event of a divorce or legal separation or death and the amount (if any) of spousal support that one spouse will pay to the other if the marriage ends.
The mainline of difference between Prenuptial Agreement and Postnuptial Agreement is that prenups are signed before the main agreement and postnups are signed after the main agreement.
What purpose do Prenuptial Agreements and Postnuptial Agreements Serve?
The purpose and content of Prenuptial and Postnuptial Agreements may differ from situation to situation, but it commonly includes provisions for: –
Division of property and spousal support in the event of breakup of marriage or divorce.
Terms and conditions for the forfeiture of assets as a result of divorce on the grounds of adultery.
Conditions of guardianship after the divorce, death, and separation of husband and wife.
What is the law Governing Prenuptial Agreements?
There are various opinions and preconceptions in India about the legal sanctity of the Prenuptial Agreement. There are no second thoughts like that, in case of Postnuptial Agreements because they are not viewed as a symbol of lack of trust and commitments in a between the future couples. All of these opinions/ perceptions/ views which we usually come across (as well listed in this article from The Better India), can be divided into two segments as follows: –
Prenuptial agreements are governed by the law of contracts and not matrimonial laws. They require all the requisite essentials as for any other contract as mentioned in the Indian Contract Act, 1872 under S.10.
Prenups can be considered binding if the marriage is solemnised under the Special Marriage Act, 1954 provided it is submitted along with other documents to the registrar.
But in all the cases there was one thing common, courts have considered the prenups as an important factor in ascertaining the intentions of the parties and on the understanding on the basis of which the marriage has been solemnized. In all the courts, Prenups have played an important role in divisions of assets irrespective of the fact that there is no specific law pertaining to their enforceability and validity.
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What are the problems faced by NRIs or people getting married to NRI and how pre/postnups helps in solving them?
India still has a significant number of people who have an arranged marriage and in some cases, the decisions are taken within a very short span of the potential bride and groom meet each other. In such cases, there may not be enough time where the bride and groom can know more about each other in terms of their background. Geographical divides worsen the possibility of the background being known and therefore Non-Resident Indians can face some unique issues as under:
Marrying just for the purpose of citizenship
Indian citizens who are getting married to Non-Resident Indians (NRI), sometimes already have relationships in India and they get married to a Non-Resident Indians just so that they can get citizenship of that foreign country where NRI resides. Then they divorce that Non-Resident Indians and get married to their paramour in India to make him or her a citizen of that country.
Abuse against NRI women
Several cases have been reported to Indian Embassies where NRI women have been harassed by their husbands after marriage and after that, they flee back to India. One of such cases we come across in a here, An Indian citizen got married to an NRI woman and used to harass her a lot in the US even though he lived with her parents in there. He stabbed the girl in anger one day and ran away to India and filed a case of immigration fraud against his own father-in-law.
Problems faced by Indian citizens after marrying NRIs
Indian women who were married to an NRI who abandons them even before being taken by her husband to the foreign land to his residence. Several cases have come forward showing many women have reached the foreign country of their husband’s residence. They keep waiting and texting their husband from the international airport just to face the disappointment of being abandoned by an NRI.
Women have been brutally beaten, assaulted, abused both physically and mentally, starved and malnourished, confined and roughly treated and forced to flee or was forcibly sent back.
A small engagement which is followed by a lavish wedding and after huge dowry and a honeymoon, the NRI husband flies away to a foreign land while the wife was left out waiting for her visa.
The menace of ‘honeymoon brides’ is a big problem to deal with. As per a report, two-thousand women who had married an NRI guy haven’t seen their husbands after the honeymoon.
Many times it has been found that NRI husbands were already married outside India to another woman. Many wives had committed suicide after discovering this also a number of times NRI husband had given false information on any or all of the following: his job, immigration status, earning, property, marital status, and other material particulars, to con women into the marriage in the greed of dowry, honeymoon, citizenship, etc.
Women who have ever knocked on the doors of the court, either in India or in the foreign country’s courts, for maintenance or divorce have repeatedly encountered technical obstacles related to jurisdiction of courts, service of notices or orders, or enforcement of orders or learnt of the husband facing simultaneous similar legal proceeding in the other countries as well.
Many times NRI already settled abroad commit immigration fraud by falsely marrying in India. Later, they break deals if more money is not paid to them.
There are cases where NRI commit crimes like murder, cheating, fraud and run away from India to their foreign country to avoid legal consequences.
Benefits and safeguards for NRI couples
When a couple enters into a prenuptial or postnuptial agreement, it does not per se mean that they are considering filing for the divorce. Here is a list of some common reasons for and benefits to both the NRIs and their future/existing spouses by entering into a postnuptial agreement: –
1. To express their wishes pertaining to property
Sometimes, couples enter into prenuptial or postnuptial agreements in order to clearly lay down each party’s wishes pertaining to the property they brought into their marriage. This helps in ascertaining which assets will be shared and which will be given to either of them because most prenups have a condition that assets made after marriage shall be shared and the assets individuals hold before marriage shall remain with that individual alone.
This will defeat the objective of those NRI who marry Indian women only for the sake of property and it will also protect the interest of those NRIs who get targeted and married just for making a claim on their property. It will reduce the common wrong of “marrying for property” against NRI.
2. Having children from a previous marriage
When spouses have children from previous relationships or marriages, they may want to make sure that a certain share of the property would pass to those children no matter what the situation is. These agreements also help in protecting children’s inheritances from if a woman/man is already married in other countries and has children, this gets disclosed to other party in a prenup. And if they don’t make any such disclosure in the agreement, it becomes easy to prove their lie in court. It also makes sure that the property gets divided among the children of both sides fair and square. It also protects the financial stability of your children. Without a prenuptial agreement, your spouse may receive assets you intended your children to have.
3.Financially Irresponsible Spouse
Apostnuptial or prenuptial agreement is a good option when you are aware that your mate or spouse is financially irresponsible or has gone through or are still going through some legal trouble during the marriage. For example, if one spouse’s spending habits, addictions or gambling habits are creating financial stress on the other one, it might make the other spouse to consider one of these agreements as a way out.
It protects the NRI wives against the financially irresponsible husbands or husbands who cheat in future because by way of these agreements, wife can enforce her rights over the property and claim her fair share for maintenance and childcare and she can even stop husband from irresponsible behavior by claiming the property and making him resourceless to finance those futile activities.
4. Separation of Property
These agreements clearly mention on paper each spouse’s separate property to protect it as separate property so that if one spouse gets stuck in some legal matters and situations get so worse that court seizes his property, the other spouse’s property is safe.
Signing a prenuptial agreement eliminates the possibility of future conflict in the case of divorce, as it states how issues are to be handled. It can also help to reduce the amount of time that it takes to settle up the divorce.
5. Special Arrangement
These agreements document and lay down in detail any special arrangements between husband and wife so that there is no dispute of turning back on the conditions agreed upon between couples.
This will not let the non-NRI counterpart get away with breaking the predetermined conditions of division of assets and custody of children.
6. Circumvent extended court proceedings
These agreements lets you avoid lengthy court proceedings which result in saving the time of expensive divorce lawyers who charge for every hour and also cut down the costs during a divorce. This agreement also lets you assist your estate plan and help in circumventing court interference to decide the properties’ distribution which can really affect the reputation of NRI’s in their companies and if not dealt properly can cost them their job.
7. Assignment of Debts
Prenuptial and Postnuptial Agreement assigns all kinds of debt, such as Home Loans, Car Loan, Education loans, and mortgages, to the appropriate spouse to avoid both spouses sharing debt liability.
8. Custody of Children
These agreements also make it clear by explicitly stating which parent is going to get custody of children after the divorce thus settling all kinds of dispute, fights and obnoxious court proceedings over child’s custody while you are already having a hard time with your relationship. The couple can go for sole custody joint custody. Under joint custody, both parents have legal custody of the child, but only one of them has physical custody of the child. However, in sole custody, only one of them has both the physical and legal custody of the child.
If any of the spouse has left his career/job in order to stay at home and take care for minor children, a postnuptial agreement can assist to make sure he or she will have the financial resources they need in the event the marriage ends in divorce.
This clause in the Prenuptial Agreement can be used by NRIs in their favour after considering the factors like career, time, resources, etc. AN NRI who is very obsessed with his job and career can deny the custody of children in the agreement but if he wants the children to be with him, he can mention the same in the agreement.
When Prenuptial/Postnuptial Agreements should be avoided?
As with any type of legal agreement, you should only enter into a prenuptial/postnuptial agreement after carefully considering all of the agreement’s provisions and implications. Here are some of the reasons to think twice about creating and signing a postnuptial agreement.
When there is a significant earnings differences between the parties
If there is a significant income disparity in a marriage, the lower-earning spouse may find that a postnuptial agreement’s provisions would not adequately provide for them in the event of a divorce or separation. That does not mean that couples with chasm of difference in income levels should never sign a postnuptial agreement; however, they should carefully evaluate such an agreement before signing it.
If any of the party has not been given sufficient time to read or evaluate the terms of the agreement
Prenuptial/Postnuptial agreements are legally enforceable contracts (if they have all the essentials of a valid contract), so it is important that both parties have the chance to read and fully understand and comprehend how this agreement is going to protect and limit their rights and obligations. If you did not understand what you were signing this is not likely to stop enforcement of the agreement, so take the time to study the document and ask for clarification where it is needed.
Conclusion
There can be many instances where a relationship can be sabotaged because of the lack of transparency in financial dealing amongst husband and wife. These agreements provide that much-needed clarity among the couples. Therefore, having this agreement ensures that the rights of both parties are taken care of. Prenups can come really handy to check misuse and abuse ofSection- 498A of the Indian Penal Code, 1860 which is a common problem faced by many innocent NRI men nowadays.
There is no law in India which determines the amount of alimony to be paid by a fixed formula or in a fixed proportion in an arithmetic manner. Alimony is usually something which is left out at the discretion of the courts. The court, while deciding the maintenance, may consider factors like the income of the spouses, the standard of living, the conduct of applicants, etc. By having a prenup/postnup, you can decide this amount beforehand and strive for an equal distribution which will be favorable to both parties and not only in favor of one who is not an NRI. It will ensure that NRIs are not treated unfairly and do not face a stereotype of “being rich because he is an NRI” It also ensures that the parties are relieved from carrying the burden of each other’s financial obligation post-breakdown. So all over it is beneficial for NRIs to enter into a prenup/postnup.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.-
This article is written by Tanisha Prashant, a student of Institute of law, Nirma University, Ahmedabad. Here the author discusses the mental health in India.
Background
Recently, a debate that engaged economists worldwide was whether or not to measure countries well being by analyzing the percentage of happy people residing in the country. India showed disappointing results by dropping low to a rank of 133 and falling behind countries like Pakistan and Africa. While measuring this subjective well being, an important factor is the mental health of the citizens of a country. Though a highly contingent factor, the role of state yet cannot be ignored and still plays a prominent role. The state plays a huge role in keeping its citizen healthy both mentally and physically. While the physical well being is often noticeable and easily accessed and cured, the attention to mental well being is at its lowest in a country like India. This lack of care and a state of ignorance that has been adopted by the countrymen is unfortunate.
Mental health in India has never been an open topic and can be associated with a taboo at certain points. The awareness regarding mental illness is nil among the citizens, even if they discover some mental illness it can’t be expected out of them to go and seek remedies. Mental illness in today’s world is something of prime importance for a country, ignoring human capital is not acceptable for a developing country like India. Owing equal attention to individuals in the country is beneficial in socially, culturally and especially economically. It is shown that countries with a high amount of mental illness go through tremendous economic drops and losses.
The Issue
According to a recent National Mental Health survey, approximately 150 million people in India need care for their mental health condition. Common mental disorders, including depression, anxiety disorders and substance use disorders affect nearly 10% of the Indian population. According to the Human Right Watch, only 0.06 per cent of India’s health budget is devoted to mental health and available data suggests that state spending in this regard is abysmal. In a survey of 3,556 respondents from eight cities across India, a staggering 47% could be categorized as being highly judgmental of people perceived as having a mental illness according to the live love laugh foundation, a non-profit organization. In the same survey, it was highlighted that 26% of the individuals were afraid of the mentally ill people. Mental health patients, according to the WHO, are receiving the worst care and support possible and live their lives in a state of utter disregard by their fellow countrymen. Only 14% of individuals receive long term care and actual benefits from treatments. For every 1000 patients, there are 0.3% of health professionals available in the country. Mental hospital expenditures are not available. Increased suicides rates among citizens, decreased life expectancy, and low economic growth all are the issues that have one answer to it, healthy mental lives of the citizens.
The Mental Health Care Act: The Journey
Mental healthcare in India has had a fair share of legislation. Pre-independence existed the Indian lunatic asylum act, 1858, which was later modified to Indian lunacy act, 1912. The Act not only gave a separate term to the mentally ill but also did very little to help them, creation of asylums though was authorized was done in a minimalistic way. The lunatic word gave them social exclusion and worsened their condition. The act was drafted with the motive of protecting the people from lunatics and thus, resulted in total isolation of the lunatics leading to a grave violation of rights and cruelty. Therefore, to do away with the previous evils of the act, the mental health act was passed in the year 1987 which acted more liberally and softly towards the mentally ill.
It repealed the Indian lunacy act 1858. The act was divided into 10 chapters with 98 sections. Terms like mentally ill rather than lunatics were used. Psychiatric hospitals instead of asylums and mental hospitals were used. A more interactive and advanced system of approach was established by dividing powers between the centre and the state. Separate hospitals for juveniles were established. The procedure of admission was also modified and was made less stringent.
Involuntary admission of the patient couldn’t exceed 90 days, the patient could come in voluntary if he is a major.
This act also recognized human rights and said that no physical or mental indignity would be given to patients.
He/she cannot be made a subject to research until and unless it benefitted him directly. Provided check on hospitals by appointing inspecting officers. Simple procedures existed for admission and discharge of mentally ill persons to hospitals.
Guardians were appointed for maintaining property and person of the mentally ill. The act gave Provision for bearing the expenses of treatment by relatives and government. Provided for a separate place for children, addicts and convicted persons.
Though the mental health act 1987, did alleviate the conditions to some level but didn’t make it the way it was supposed to be. Increased health care costs with little budget allocation, more pressure on hospitals and doctors than the government, post-discharge and rehabilitation care was not present.
Educating society was not taken as a measure, change of terminologies helped only theoretically and not practically.
The amendment of the act was critical because of two landmark developments. At the national level most exemplary amendments into the Protection of Human Rights Act of 1993 with advanced concerns of human rights and its protection, gave new dimensions and understanding to certain aspects of the society. At the International level, the most wanted ratification of the Convention on Rights of Persons with Disability in October 2007 further made it necessary to amend the laws.
In the year 2017, the mental health care act, 2017 was introduced, which repealed the earlier acts. it viewed the issue from a rights-based approach. The act was described as an act to provide mental health care and services to protect, promote and fulfil the rights of such persons during delivery of mental health care and services and for matters connected therewith or incidental thereto. The act defines “mental illness a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgement, behaviour, capacity to recognize reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterized by subnormality of intelligence.”
Justice NV Ramana, Justice Mohan M. Shantanagoudar and Justice Indira Banerjee observed that Section 20 (1) of the Mental Health Care Act explicitly provides that ‘every person with mental illness shall have a right to live with dignity.’
Features
It decriminalizes suicide and prohibits electroconvulsive therapy. It is, however, out of bounds for minors. Every person will have the right to access mental healthcare services. Such services should be of good quality, convenient, affordable, and accessible. This act further seeks to protect such persons from inhuman treatment, to gain access to free legal services and their medical records, and have the right to complain in the event of deficiencies in provisions. The act also recognizes the right to community living; right to live with dignity; protection from cruel, inhuman, or degrading treatment; treatment equal to persons with physical illness; right to relevant information concerning treatment, other rights and recourses; right to confidentiality; right to access their basic medical records; right to personal contacts and communication; right to legal aid; and recourse against deficiencies in provision of care, treatment, and services. However, the estimate of the expenditure required to meet the obligations under the law is not available. It is also not clear how the funds will be allocated between the central and the state governments. The concept of advance directive, which gives patients more power to decide certain aspects of their own treatment, has been picked up from the West. However, unlike developed countries, local factors such as existing mental health resources and lack of awareness about mental illness in India have not been taken into account. Mentally ill persons who suffer from serious psychological disorder often lack the ability to make sound decisions and do not always have a relative to speak on their behalf.
Legislations like the rights of disabilities act 2017 recognizes mental disability and provides various benefits to the mentally ill by putting tools of social inclusion in their hands.
Issues and Challenges
It overlooks the avoidance and advancement of mental prosperity rather makes it carefully a clinical issue. The Act does not give a reasonable method of setting up the Advance Directive. Further, specialists are of the sentiment that they are in the best position to make choices on parts of treatment since patients or their designated agents may have restricted information on emotional wellness and psychological maladjustment. The Act gives a thin and limited meaning of psychological well-being experts and does exclude psychotherapists, instructors and psychoanalysts. In contrast to the Act of 1987, the Bill does not accommodate the board of property of mentally ill people. This is a genuine aim of worry as mentally ill people could without much of a stretch be abused and their property detracted from them, leaving such people in a ceaseless condition of reliance. The monetary update of the Bill does not evaluate the use required for gathering the commitments under the Bill nor does it give subtleties of the sharing of costs between the focal and state governments. Without the allotment of satisfactory assets, the usage of the Bill could be influenced.
Several states face financial constraints, the central government might have to step in to ensure funds for the implementation of the law.
Erwadi Tragedy In 2001, 28 patients who were chained at a home for mentally-ill people died after a fire that engulfed the home in Erwadi village (Tamil Nadu). The incident highlighted the need for organized and human approach to mental health care. It highlighted the reformation of jail like mental hospitals. The grave human rights violations and the utter cruelty that the patients are subjected to cannot be ignored at any point.
Conclusion
In the wake of momentum rights arousing procedure inundating the world, the need of an increasingly sympathetic methodology towards our own one of a kind kinsmen .psychological wellness isn’t a malady or an issue to be looked down on, it’s something equivalent to having a cold or a viral fever which can be relieved. Given the correct sort of consideration. Dismissing it will just compound it. Enactments have constantly encompassed an issue, however just on the off chance that it could help reduce the continuous issues of the harmed. Teaching and sharpening the natives appears the best way to approach this issue. The absence of training at the piece of the natives in managing rationally sick is an unsettled issue. Disguise as opposed to systematization is the roadway to managing emotional well-being issues and accomplishing better monetary social and social worldwide guidelines.
This article has been written by Tanisha Prashant, student of Institute of Law, Nirma university. In this article the author discusses about the criminal justice system in India. The article lies on the concept of bringing fairness and consistency while awarding sentences.
Introduction
In a world which today notices an alarming increase in crime rates, the need to regulate the domain of criminal justice system in every country is the need of the hour. Crime and punishment have today formed a very crucial and delicate aspect of the society; it can no longer be guided by customs and precedents. A fixed regime needs to be brought into force and the subjective element needs to be reduced as much as possible. However a fact that cannot be ignored that no fixed penalties can be induced over the accused because of it being too harsh and too ignorant on the rights of the accused. The accused has the right to avail certain basic human rights which the fixed penalty regime violates. Also, giving discretion to the judges on deciding penalties will also result in violation of fundamental rights.
The article lies on the concept of bringing fairness and consistency while awarding sentences. An underlying rationale can be adopted, a significant improvement to the existing. A balance between the rights of both the victim needs to be achieved before defining a sentencing policy. The Indian criminal justice delivery system lacks a pronounced sentencing policy as in the countries of the United States and United Kingdom. The article also opines that certain principles and policies need to introduce at the part of the legislature, to introduce a certain level of coercive power to stand strong on its rights and also international obligations.
The article describes the current sentencing policy in India, the rationales and goals of sentencing, the nature and role of aggravating and mitigating factors, the sentences awarded to various types of crimes and offenders. It also takes into consideration the role of sentencing policy after the trial has been done.
Principles of criminal justice
Every society exists on a certain amount of social control, and a particular moral ethical rationale underlying it. The concept of social control is guided by the principles of justice. When a person portrays a certain type of deviation from this prescribed mode of behaviour, a social habit or rule, he is inflicted with a certain type of penalty. This infliction will vary from society to society and deviation to deviation. The kind infliction or punishment will depend on both the crime committed and the society. Some societies are concerned only about the victim, whereas some are concerned about reforming the convict rather than punishing. This schematic adopted by a country to punish its offenders can be termed as its sentencing policy. The sentencing policy reflects the measure of judgement and the rationale, the society has for a certain crime. It is the primary rationale guiding the criminal justice delivery system of a country. Sentencing guidelines can be considered as a formula for calculating what is right for a particular crime. This article is not focused about the type of crime but on the type of punishment and the generality it possesses in a criminal justice system.
Punishment and sentencing though form a union at the end, but are distinct entities and are often confused with each other. They are often used interchangeably and lead to contradictions. Operationalization of the punishment is the sentencing policy. A sentence does the work of stating and defining the punishment stated in the law of land. Sentences are judgements containing punishments for criminal matters. As nouns, sentence and punishment mean that where the former stands for opinion the latter stands for imposition, infliction of penalty.
In India, punishments are defined in section 53, chapter 3 of the Indian penal code, 1860. Section 53 of IPC reads that there are six types of punishments available under the law of India, those being, death, imprisonment for life, rigorous imprisonment or simple imprisonment, forfeiture of property and fine. The forms of punishment must satisfy certain principles under criminal law. The type of punishment must be proportional, it should always be in proportion to the crime committed, and it should take into consideration the rights of the offender and the society at large also.
The problem that is underlying the criminal law today is that the purposes of punishment are not being fulfilled in the criminal justice. No sentencing policy has been stated as clearly as the types of punishments, when both of the concepts form important aspects under criminal law. The need for a fixed regime is needed because of the punishment policy being indeterminate and inconsistent. To avoid the disparity in this regard there arises a need for sentencing policy in India. The goal of sentencing policy is to promote a particular just society, protection of rights of both the victim and the convict. It also helps in denunciation.
In India there lies a huge inconsistency and disparity while deciding the punishment and awarding a sentence for a particular offence. For example, punishment for the following offences under the Indian penal code are-
Murder
Whoever commits murder shall be punished with death, or [imprisonment for life], and shall also be liable to fine.
Whoever commits culpable homicide not amounting to murder shall be punished with [imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with [a] fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.
Theft
The punishment for theft is up to three years’ imprisonment, a fine, or both.
Rape
Any person committing the offence of rape shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine. After the Nirbhaya case, a juvenile can also be tried as an adult depending upon the circumstances of the case.
A pattern noteworthy while looking at the punishments prescribed under the penal code is that all the crimes have a certain minimum and a certain maximum punishments. There is no fixed penalty for a particular sort of offence. The gap between the maximum and the minimum punishments affects the sentencing regime in the criminal law majorly. The wide gap between this the focus area of judges while awarding sentences. They exercise latitude of power while deciding cases.
This discretion as to which case deserves the minimum and which case deserves the maximum depends upon the discretion of judges. The judges in India take into account the various factors guiding the case like severity, liability, guilty mind and then award a sentence. This sentence seems wholly an end product of the judge’s mind, his personal prejudices and considerations. This process of application of a judge’s discretion while awarding a sentence to the offender is out rightly reflected in the criminal code under section 354 clause (1)(b) which says that a judge while awarding a sentence must record the reasons which led him to the decision, also in clause 3 of the same section it is stated that when the sentence concerns itself with death or imprisonment for life special reasons must be laid down . The law in response to above mentioned , while deciding the case and justifying their standpoint on the sentence awarded, gave rise to certain logics like those of aggravating and mitigating circumstances. Aggravating circumstances or factors are those which increase the severity of the crime. While mitigating circumstances are those which decrease the severity of the crime.
In of Raju v. State of Karnataka this case highlighted that the Indian judiciary is not victim based, the sentence of the convict was reduced just because it was claimed that the victim had an immoral character in the eyes of law.
In Soman v. State of Kerala, Supreme Court observed that:
“Giving punishment to the wrongdoer is at the heart of the criminal justice delivery, but in our country, it is the weakest part of the administration of criminal justice. There are no legislative or judicially laid down guidelines to assist the trial court in meting out the just punishment to the accused facing trial before it after he is held guilty of the charges.”
State of M.P. v. Bablu Natt, the Supreme Court observed that:
“The principle governing imposition of punishment would depend upon the facts and circumstances of each case. An offence which affects the morale of the society should be severely dealt with.”
Similarly in the case of Gurdev Singh v. State of Punjab the court awarded death sentence. On the face what looked a case of sheer brutality later revealed a case of unhealthy mind and soul guided by revenge. The judgement of the court could not be undone and the justice delivery failed at a point.
In the case of , Mohd Chaman v. State , Accused had brutally raped and killed a one year old The lower courts having seen the situation as the rarest of the rarest cases imposed death penalty. The lower courts awarded death penalty, but when sent for clarification was overruled by the high court stating that the convict didn’t pose a threat to the society, and reduced the sentence.
Over the period of time, the Indian courts have through inconsistent decision making and faulty rationales have indirectly pointed out the need for a sentencing policy. The concept of aggravating and mitigating factors depends on each case also, the concept of rarest of the rare case is a matter of case and its circumstances .It has not been specified and is completely over the discretion of the deciding person, what might be brutal for one may not be for the other person.
The need for the sentencing policy does not end after completion of the trial. It again comes into play while deciding the probation period of offenders. Section 360 and section 361 governs the release of convicts to be released after a good conduct and special reasons to be recorded in certain cases. Again the concept of good conduct will depend on each jail authority, on each jail circumstances and the type of offence committed by the offender.
The need for the introduction of a sentencing policy was felt by the Malimath committee, established under ministry of home affairs, set up for giving a recommendation on the prevalent criminal justice system. The committee emphasized the wide discretion judges have while deciding case and felt the need to minimize it by regulating law points, and also the power of judges to some extent. The committee asserted the need for an in depth study on the matter by an expert committee. The committee pointed out a new code for classification of offences , other than, cognizable and non cognizable. A social welfare policy should be adopted. Later, in 2008 the Madhava Menon committee, which reiterated the need and made the request of drafting a policy for making a fixed regime and set guidelines for sentencing.
The aim for sentencing policy , as introduced in the white paper (the sentencing policy, when introduced in the British parliament was called the white paper), should be “deterrence and protection of society from evils”. The lack of a proper sentencing policy not only violates the rights of victims and convicts but also the basic fundamental right of a human under the constitution i.e. the right of being treated equally under the eyes of law. Doing away with the discretionary powers of the judges totally is not possible. Also a straight jacket approach to a field like law which is ever changing is also difficult. But what can be established a certain guiding principles which lower the amount of discretion that a judge may apply, and also establishing a principle underlying the punishment policy to give a more rights based approach to the Indian criminal justice system.
Conclusion
In any legal system, justice for the members of the society if of prime importance. In this domain, protection of rights through fair trials , and a proper punishment mechanism needs to envisaged, which is able to strike a balance between the victim and the accused. The cases can no longer be decided by giving such wide powers to the judges and leaving the criminal justice system on whims and fancies of the judges. The judges do back their opinions by rationales, but such rationale is not able to satisfy the needs of the criminal justice delivery systems and is leading to an incoherent legal system. A sentencing policy which reduces this wide latitude is the need of India to a coherent legal system. The recommendations of the Malimath committee must be taken as standard policy guidelines and policies need to be enacted.
This article has been written by Pankhuri Anand, a student of Banasthali Vidyapith, Rajasthan. This article discusses the aspects of Indian Evidence Act regarding the statements by a person who cannot be called as a witness.
Introduction
As a general rule of law, oral evidence is required to be direct and the oral evidence is required to be stated before the court by the person who received the first-hand knowledge of the facts. When any witness appears before the court he needs to give his testimony on oath and there are also the provisions of examination-in-chief, cross-examination and re-examination. But there is a certain class of person whose statements are recorded who are not considered to be a witness.
Hearsay rule
One of the exceptions to the general rule is hearsay evidence which is considered inadmissible as it is not stated on oath and there is no opportunity of cross-examining the original source by the party against whom the proof is given. Also, there can be chances of falsehood.
A stabbed B and C was present at the scene of a crime, so he is a first-hand witness. His testimony will be recorded on oath and he can be cross-examined. He can even be held liable if he gives any false statement or any misleading statement. But if there is D who gives a statement that C told D that A stabbed B, it will be a second-hand witness and the hearsay rule will be applicable.
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The hearsay rule is mainly based on two major considerations:
The necessity of the evidence.
The circumstantial guarantees of trustworthiness.
The hearsay evidence is excluded because they are considered untrustworthy.
According to section 32, any written or verbal statement containing relevant facts which is made by a person who is either dead or cannot be found or has been given by a person who has become incapable of giving evidence or the attendance of such person can require delay or expense which seems unreasonable to the court, are relevant in the following cases:
When the statement is related to causing of death
According to section 32(1), when the question comes to the death of a person and that person gives a statement regarding the cause of his death or about any of the circumstances which led to his death then it is considered to be relevant.
The statements made are considered relevant even if that person making a statement was there or not at the time when the statement was made during the expectation of death.
Illustration:
When the question arises that whether B murdered A or not.
A dead due to the injury caused by B and suit against B is carried on by legal heir of A.
The statement of A regarding his death referring to the murder and other actionable wrongs are relevant facts.
A statement made in the ordinary course of business
A statement which has been made by such person during the ordinary course of business and such statement consists of any statement or entry of memorandum or any book maintained by him in the ordinary course of business. It may be considered of any acknowledgement which has been written and signed for him of any document which is used for commerce which has been written and signed by him according to sub-clause (2) of section 32.
ILLUSTRATION: When the question in dispute is regarding the question that whether the ship sailed from Kolkata harbour on a particular date then, a letter written by a member of merchant’s firm to the correspondent stating that the cargo has been shipped on the particular date is a relevant fact.
The statement made against the interest of the maker
When a statement made by a person is against his pecuniary or proprietary interest and it will expose him if it is true to criminal prosecution or to the suit of damages then it considered being relevant under section 32(3).
Illustration:
A has made any statement which is against his interest and such statement can expose him, then such statement is relevant.
The statement which gives an opinion as to public right or custom
When a statement is made which gives an opinion regarding the existence of any public rights, customs, or a matter related to the general public interest which it existed, he would have been aware of and when such statement has been made there was no controversy of such rights, customs or matter under section 32(4).
Illustration
If a question arises whether the road is a public way. The statement by X who is a deceased headman of that village is relevant.
The statement as to the existence of a relationship
Under section 32(5), when a statement is given which is related to the existence of a relationship by blood, marriage or adoption by the party making the statement has a special means of knowledge about the existence of such relationship about marriage, blood relation or adoption and such statement is required to be made before the dispute was raised.
Illustration:
If the question of the dispute arises that whether or not A and B are legally married, then the statement of a deceased clergyman that they were married by him under certain circumstances will be relevant.
A statement made in a will or deed in family affairs
Image Source: Pixabay
When the statement made is related to the existence of a relationship by blood, adoption or marriage between the deceased persons in any deed or will and such will or deed is related to the family affairs of such deceased person then it is considered to be relevant under section 32(6). Such a statement is required to be made before the question in dispute was raised.
ILLUSTRATION: If the question arises that A who is a deceased person, whether the father of B. The statement of A in his will considering B as his son is relevant.
Statement in a document relating to transaction creating a Right or custom
According to section 32(7), when a statement is stated in any will, deed or any other document which is related to the question of the existence of a right or custom under section 13(a) of the Evidence Act,1872. Such a statement should be regarding the existence of a certain right or custom by which such right or custom which is in question was created, coined, recognised or denied.
Illustration:
When an issue arises about a custom or right in a particular area, the statement of X who was present when such right or custom was created is relevant.
A statement made by several persons expressing feelings relevant to the matter in question
When the statement has been made by several numbers of persons who have expressed their feelings on their part, then such statement is relevant under section 32(8).
EXAMPLE: Public opinion about a matter in dispute.
Who can make the above statements?
The person who is dead
The statement made under section 32 must be made by a person who is dead before admitting the statement before this section. The statement of a dead person has been given importance under this section as there can be no better evidence can be laid than the statement made by the dying person himself about his death.
If the person who has made the dying declaration survives then such statement is not admitted under section 32 but under the provision of confession.
The person who cannot be found
When a person disappears and never heard of and his presence as a witness cannot be compelled and such a person makes a statement and the party to the proceeding is able to prove that such person has disappeared but his statement can be proved then such statement can be admitted.
Before such a statement is admitted it is required to be proved that the person who is seeking for admission of such a statement has made an examination of that person with an honest effort.
By the person who is incapable of giving evidence
When a person making a certain statement later become physically unfit and incapable to depose, in such a situation, if the statements made are related to the sub-clauses of section 32 of the Act, then it is admitted and may be proved during the proceedings. This section includes any person who becomes physically incapable of giving a statement on a later stage.
Unreasonable delay or expenses
When there can be unreasonable delay or expenses in the procedure of appearance of a witness, then if his previous statement is relevant, it is admissible.
But, the mere fact that a person is living far away from the place of trial, is not a valid ground of the admission of a statement under section 32. For the admission of a statement under section 32, it must be proved that in the attendance of the person, unreasonable delay and expense will take place.
Image Source: Pixabay
Dying declaration
The term “dying declaration” is not defined under the Evidence Act but it can be interpreted according to sub-section (1) of section 32.
As held in the case of Ram Bihari Yadav v. the State of Bihar, “A dying declaration can be defined as a statement made by a person who is dead regarding the reason for the cause of his death and regarding any transaction which resulted in his death. Also when the question of death comes into question then such statements are relevant under section 32 of the Indian Evidence Act. The person making such a statement was under the expectation of death or not at the time when such statement was made comes into question”.
Evidentiary Value of Dying Declaration
When a dying declaration is made orally and the person gives the name of assailants and it is written by any of them, then it is a valid dying declaration. The people present can dispose of orally that the names of assailants were given by the deceased as held in the case of Nanhu Ram v. the State of M.P.
The oral dying declaration is considered admissible and they are an exception to the general rule of evidence that considers hearsay evidence as invalid evidence in the eyes of law.
In the case of Bable v. State of Chattisgarh, it was held that the oral dying declaration is an exception of the Hearsay evidence.
Even when a dying declaration has been made by the deceased before his wife, father-in-law or any relative in a conscious state and the doctor conducting his post mortem examination has not made a cross-examination about the mental state of the deceased, then also the dying declaration considered absolutely valid and conviction can be made on the basis of such declaration as held in this case of Prabin Ali v. State of Assam.
In the case of Vijay Pal v. State (Government of NCT) Delhi, it was held by the court that it is clear by the law that when a dying declaration is credible and there is nothing in the record that the condition of deceased was not so that he could have made the statement to a witness. Like in this case when the witness rushed to the house of the deceased, she told him that her husband has poured kerosene on her.
In the case where the death of the deceased by burning by the husband, in such cases, the dying declaration made by the deceased is considered to be totally true and no evidence is present that can prove the contrary. Even the absence of kerosene oil in the deceased hairs cannot render the dying declaration as doubtful as held in the case of Tanua Rabidas v. State of Assam.
The dying declaration cannot be used for conviction of accused if it is the sole evidence. The conviction cannot be made solely on the basis of dying declaration unless it is corroborated and each case is decided on an individual basis of the case. The circumstances of the case affect the value of the dying declaration. sole evidence
Reason for admissibility of dying declaration in evidence
A dying declaration is admissible in the evidence based on the principle of:
‘Nemo moriturns proesumitur mentiri’
This principle means that a man does not lie at the time of his death and he will not meet God with a lie in his mouth”. A dying declaration is considered to be correct as long as confidence is inspired by it in the mind of the Court. A dying declaration is required to be judged according to its circumstances as held in the case of Umakant v. State of Chattisgarh.
As held by the Supreme Court in the case of Uka Ram v. State of Rajasthan, the sense of death leads to the same feeling which a virtuous man get under oath and the principle of admissibility of dying declaration is based upon this principle. The admission of dying declaration is made on the consideration that the declaration has been made by the deceased under extremity. When a person is near death and his hope is gone for this world then it is powerful consideration that he will be speaking the truth.
Indian law is based on the principle that “a dying man seldom lies.
There are two types of statements which are made admissible by section 32(1):
A statement stating the cause of death
Statement related to any circumstances which resulted in death.
Conditions for dying declaration
The statement is considered as a dying declaration when the statement is made under the following circumstances and conditions:
Cause of death
When a person makes a statement regarding his cause of death or about any circumstances or transaction that resulted in his death then such statement will be considered as a dying declaration and it is considered relevant.
Illustration:
A dies due to assault. Before his death, A makes a statement than B stabbed him with a knife. Such a statement is admissible before the court as a dying declaration and the fact the deceased survived for few days even after a fatal injury does not deprive such statement of being of a character of dying declaration.
The statement related to the cause of death of the deponent is admissible and the time gap between the statement of deceased and the death is considered immaterial.
The statement of the deceased made but the cause of death is something else or some disease, then such statement is not considered as a dying declaration.
When declarant dies of injury that is yet to be proved
For the statement to be considered as a dying declaration it is required to be proved that the cause of his death is due to the injury he received in the incident for which the accused is to be prosecuted. As in the case of Chandra Bhan Singh v. State where the deceased narrated the incident of murder before the police about the attack on him for murder but later it was found that the death of deceased was because he developed cancer. So, the statement of the deceased could not be considered as a dying declaration.
Circumstances which resulted in his death
The expression “any circumstances of transaction that resulted in death” has a wider scope than the expression cause of death. Even if a statement is not considered as a cause of death but it might be admissible under the circumstances which resulted in death.
In the case of Patel Hiralal Joita Ram v. the State of Gujrat, it was held by the court that statement of circumstances that resulted in death is itself enough to expand the scope of admissibility of the declaration. Any statement related to death directly or indirectly, proximately or remotely are considered under this and it expands the ambit of dying declaration.
Intention to use such a statement as dying declaration is not compulsory
In the case Bhagirath v. the State of Haryana it was held by the Supreme Court that it is not compulsory that while recording the dying declaration that statement is to be used at dying declaration. The intention to use the statement at a dying declaration is not mandatory.
In this case, also the deceased who has suffered the gunshot made his statement but later he died. The statement recorded was considered as the dying declaration.
The person making a statement when not dead
When the person who has made the statement as dying declaration survives and does not die, then such statement is not considered as a dying declaration. It will be considered as confession statement but not as a dying declaration.
Expectation of death
A statement recorded as dying declaration is considered relevant when the person making the statement was or was not having an expectation of death.
The expectation of death does not affect the validity of dying declaration but it affects the weight attached to it. When a person who is making the statement has knowledge that he is going to die and he does not have any hope of recovery left, then the chances of statements to be true increases as held in the case State v. Kanchan [AIR 1954 All 153].
The Supreme Court is also of the view that there is no doubt that when a person is expecting death soon then the chances of falsehood decreases but the value of the statement is not lost if the person is alive for a longer time than expected.
Proximate cause
The statement made as dying declaration must have a proximate relationship with the actual occurrence and not remote as observed by the privy council in the case of Narain Swami v. Emperor.The statement of a person should be regarding the cause of death or circumstances leading to the death of the person and it should be made by the deceased person.
Difference between Indian Law and English Law regarding the dying declaration
The rules regarding the dying declaration are different under English law than the Indian Law as follows:
The dying declaration is not admissible in the civil cases under the English Law but under Indian law, the dying declaration can be admissible even in civil cases into question.
In the criminal cases under the English Law, the dying declaration is considered only in single instances of homicide such as murder or manslaughter where the circumstances of the death are subject to dying declaration while under the Indian Legal System, the statement made as dying declaration act as evidence whatever the nature of charges may be.
As per the English law, for dying declaration certain conditions are required to exist during the time of declaration such as:
It is important that the declarant should be in actual danger of death and the statement should be made receiving the injury.
The declarant should be aware of his danger and he should have left every hope of recovery.
The death should be caused.
Under the Indian Legal system, the third condition of death is necessary as the dying declaration is considered admissible only when the declarant dies but the first two conditions are not mandatory under Indian Law for a declaration to be admissible as dying declaration.
Under section 32 of the Evidence Act, the statement of the deponent is considered as a dying declaration even when he was not in actual danger or he has no actual knowledge of the danger
Under English law, admissibility of the dying declaration depends on the principle that sense of death is produced in a man’s mind some feeling of that is same as a virtuous person giving a statement under oath. When a person is at the verge of death and he has no hope left for life, then the feelings of falsehood disappears and a person’s mind only speaks the truth. Under Indian Law, for consideration of statements as dying declaration and testing its credibility, a weight is given to the facts and circumstances of the case.
Dying declaration recorded by the police
A dying declaration recorded by a police during his course of investigation is considered admissible under section 32 of the Indian Evidence Act but it is better to leave such declaration out of consideration unless the prosecution is able to satisfy the court that why it was not declaration recorded by a magistrate or a doctor as held by the Supreme Court in the case Dileep Singh v. the State of Punjab [1979 CrLJ 700].
Conclusion
There are certain classes of people who cannot be called as a witness but their statement when recorded under certain circumstances, it is considered as relevant. Such as when the statement is made by a person who is dead or a person who cannot be found or the attendance of whom requires unreasonable delay or expenses then the statement made by them regarding his death, or ordinary course of business and certain other conditions as mentioned under section 32 are considered relevant.
One the major statement is the dying declaration. The dying declaration is considered admissible under the Indian Legal system and holds important evidentiary value under law. The dying declaration solely does not lead conviction but under few circumstances of the case, even the sole dying declaration can lead to the conviction of accused.
The consideration of the dying declaration also depends upon the facts and circumstances of the case. There is a major difference between the concept of dying declaration between the English Law and under the Indian Legal System.
The dying declaration and the weight attached to also depends upon the knowledge of the deceased about the expectation of death as there is the concept in the legal system that when a person knows he is going to die, then the statement given by him are not false and it also improves the credibility of dying declaration.
If you want to know more about Witness Protection in India, then Click Here.
References
Lal Batuk, The Law of Evidence, 22nd Edition (2018), Central Law Agency;
We are working on a breakthrough course curriculum at LawSikho that I really want to shout about from the rooftops. That’s how excited I am! You will understand why once you go through this.
We are very close to relaunching our Legal practice development and management course in a fresh new format.
We are getting top lawyers who have built successful brand name law firms to teach in the course, sharing from their experience and helping a new generation of legal entrepreneurs.
We are planning 15 sessions with these top lawyers for you to learn the trickiest parts of building successful law firms and chamber practices. We would include enough lessons for solo practice too.
I am sure you can imagine why we are this excited. I believe this will be a gamechanger for you, us and the legal industry.
India has a lot of amazing lawyers, but not as many law firm managers and legal entrepreneurs as we need! That’s where many lawyers with great skills get stuck.
We want to cover all the pain points of developing a profitable law practice, from business development to hiring and building a winning culture.
We have some thoughts on what to teach on the course, of course, and we have been offering this course over the last two years. However, this is a fresh new opportunity for us to relook at what are the real things that you would want to learn in such a course.
So here it goes. An open invitation to participate in our course design process. Tell me what you think should be taught in the most amazing practice development course that actually helps lawyers to succeed in practice.
We are consulting industry giants on what should be included in the course, but I know from experience that sometimes the best ideas and inputs come from the people who actually need the product. That’s the rule we have always followed and listening to customers have given us some of the biggest breakthrough ideas, such as our very popular Master Access program.
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So we want to hear from you.
After all, knowing the law and procedure is only one part of the legal profession, the other part is the business side of it. This does not end at finding clients, but also building a powerful organization.
Of course, the course curriculum is in for some major changes, but you can get a sense of what is already there by looking at the syllabus on that link.
So what are the things you would want us to teach in that course?
Here are suggestions we have received so far that we are considering:
How to price legal services
How to plan the finances for the growth of your law practice
How to develop a business plan for a legal practice and execute it
How to go about expanding a law firm – adding new partners, practices and cities
How to hire right across different levels
Full service v. boutique – how does it work
How to build the brand of your law firm
How to use technology for efficiency, competitive advantage and growth
How to manage relationships with big corporate clients
Importance of knowledge management practices and systems in a law firm
How to get international clients and creating global alliances
Getting empanelled as a lawyer or a law firm – how does it work
Digital presence of law firms and partners – is it important?
Client service: how to build a seamless system for awesome client experience
How to avoid disappointing clients
How does referral arrangements work in the legal world
How should a law firm partner go about business development
Networking for law firm partners and boutique law firm owners: how to do it right
Profitability v. Expansion – how to balance
How to retain the best talent and manage attrition rate
How to identify, cultivate and attract the best talent
How to identify new and emerging areas to grow your practice in
How to plan and build the underlying support organization for your law firm
How to find the first 3 clients when you are starting your practice
How do you find a partner to work with when you are starting a law firm
How to ensure high quality of work as your firm grows bigger
Nightmares of a law firm partner
Service delivery: effective document control practices
Also check out the Litigation Library program. We are still taking people into the Litigation Library membership program. It is one of our most premium and amazing subscription programs if you want to do a lot of LawSikho courses. Check it out, the membership will include an access to this upcoming Legal Practice Development and Management course.
Also, btw, here are the individual courses that are open for enrollment as of now:
I really like what you are teaching in your courses, but I do not have the money to take such courses. How can I learn these things without having to pay for your course? Is there any other way?
It’s a very intelligent question and I respect it. My advice is always please go and check out our weekly learning objectives, weekly exercises and syllabus of any course you like, and then try to learn those things on your own.
There is always a way, even if it is much more difficult and longer.
There are two ways actually, apart from taking our course. Let me tell you about them.
The background
I feel compelled to write this down because I am getting asked these questions several times every day on social media. Now that I am writing it all down, systematically, I can just send a link to anyone who asks me this question again and they will find the detailed answer they need.
Note: as a lawyer if you are asked certain basic questions too many times, you should also do this. Write a blog post and publish, and then whenever people ask you the same thing instead of having to give a long but accurate answer all over again, you can simply send them the link.
Saves time, and helps people much better.
Also, there is one more question that needs to be addressed. The elephant in the room. You may wonder why I am giving advice on what can substitute my courses. Isn’t that against my business interest?
Well, I know that out of the tens of thousands of people who read my mail regularly, only a small percentage, less than 1% probably, will ever buy a course from LawSikho.
And I am absolutely fine with that.
The value we capture in life, in terms of money, success, satisfaction, TRP or anything else, is a direct function on how much value we generate for how many people. One sureshot way to reach a large number of people and therefore increase your catchment of influence is to give away lots of valuable things away for free. This always enhances what we are entitled to from our lives. Never hesitate to generate value for people. That is how the new economy works after all.
I have no hesitation in giving you what you want, because I am very secure that what I build is so valuable that there will always be takers for that. And thankfully, I and my team of more than 30 very dedicated colleagues are therefore well taken care of.
I hope you will also consider giving away your best insights and knowledge some day to other people without hesitation and remember that the more you give away to the universe, the more it gives back to you.
Now let’s get to the point.
Since you only learn some sections and case laws in law college, and 5 years of legal education leave you grossly unprepared for working as a lawyer, and therefore making it very hard for you to land a decent job where you can do meaningful work and get even a subsistence salary, what can you do to upskill yourself so that you can start your legal career on a strong footing?
Of course, you need to learn the practical knowledge. What work do the lawyers with 2-3 years of good experience, who are getting decent salaries in well to do law firms, know to do? You need to find out. That’s your gateway task.
You need to know what are those skills and then you have to learn them. Yes, our courses work because we exactly focus on this – teaching these skills so that if you go for an internship, or an interview, or even a client meeting, you can wow those people with your precise understanding, knowledge and insights regarding the work you are required to do.
This is a far cry from the approach most people take – that is to aimlessly send CVs to organizations hoping that someone will hire them and then teach the work.
Sorry, nobody is sitting there fantasizing about hiring your brilliant raw mind and then training you into an amazing lawyer. Did happen in Suits, doesn’t happen in the real world.
In this world, lawyers want to hire law graduates who are amazing at their work already, have minimal expectations and will just do the work without requiring to be told what has to be done. That’s what they even fantasize about.
But if you do not want to pay for a course, what is the alternative way to learn the same work, so that you can fit into that fantasy nonetheless?
One slow but inexpensive way is to do long term internships. You can learn a lot from an internship that runs into 6 months to 1 year provided there is a senior who is interested in you learning.
This part is tricky. When you are doing an internship for free or for a pittance, everyone would want to have you in their office, and if for nothing else then just to carry around their files. But would they be caring enough to think your training and development through? Will they make time to give you some meaningful training?
That’s really tricky to answer.
Not that carrying around legal files is a bad thing. Simply by shadowing a good lawyer while carrying his files you may learn invaluable lessons. However, honestly, that happens quite rarely. So be careful about how you use your time. Many lawyers have wasted precious years of their lives doing all sorts of things that led them nowhere.
That’s a big danger in the legal profession.
Also getting those desirable long term internships can be quite difficult to land as only very few lawyers are able to give time to interns and those are very high in demand. Even to qualify for most amazing internships, you need to have a super CV and need to bring some serious skill or abilities into the game to get selected in the first place.
So yes, a lot depends on luck. Still, you need to work really hard to even give your luck a solid chance here. Also, unfortunately, many law schools do not even allow their law students to do a long term internship, closing this avenue completely. Try to convince your teachers to allow you to do such long term internships.
Remember that for this strategy to work well, you need to pick the right lawyer to work with. It is not necessary to work with famous people. In fact, the more famous and busy people are least likely to have a lot of time for you. Do your research. Ask around about which lawyers take enough initiative to develop his or her juniors, and try to get a stint with them.
This long term internship is a hit or miss for most people, so if you get the wrong internship, have no qualms about jumping ship.
Even those law students who do our courses, I encourage them as well to do long term internships wherever possible, the difference being that they also get our guidance and recommendations for landing the right kind of internships.
What is the second way?
You need to find a lawyer who will mentor you and teach you for at least 3 hours a week. Around the year, at least for a year. Take an area of law in which such a lawyer is doing well, and request him to teach the same to you.
Given how busy lawyers are, I find it unlikely that anyone outside your immediate family, close friends or some close relative may agree to take on such a coaching assignment.
But yes, if you can find someone like that, you can make rapid progress in learning practical skills under the aegis of someone who already knows how the work is done.
This advice applies equally to litigation and law firm work.
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What is still the advantage of LawSikho then?
I know not more than 5-10% law students or lawyers will be able to find the kind of opportunities described above. The other option is to learn from trial and error over the years, which is anyway extremely painful and inconvenient. And naturally, expensive. Even if you are not paying with money upfront for that avenue, you are losing out on time and earning opportunity that is significant.
The loss of opportunities cannot be ignored as you spend your time trying to learn things on your own, unsystematically, from a busy senior who has no effective plans to teach you the trade. It could take years and still you would find it extremely hard to do well.
I would rather spend a few thousands, or even lakhs if I have to, in order to learn well and learn fast, because I can then truly go after my destiny. After all, if you know how to do the work, there is no dearth of money in the legal profession.
And that is exactly why we are getting hundreds of students to join us every month. It is a choice between saving a bit of money and losing a lot of opportunities. It is a choice between systematic learning at a reasonable cost versus saving that money but losing lakhs in salaries and precious time during your youth. It is a choice between acing it at work and getting shouted at by overworked, impatient seniors who are very reluctant to spend time teaching you when they hardly get any time to sleep or spend with their family.
And we are not worried. Now or later, you will see the point I am making. And you will understand why LawSikho courses are worth every penny in investment.
If you think our courses are expensive, try learning the same thing in any other way, or just try out how it is to navigate the legal world without such essential knowledge. It would not take you long to realise what is cheaper.
Also, even if you learn about one area of practice from one lawyer, and get started, eventually one day you will need to venture into new areas of law. At that time, your time will be more valuable than your money. Even then, we will be around with a diverse range of ultra-useful super-practical courses that will come to your rescue.
That said, I truly wish you all the best. Each of you are capable of doing great things in your legal career, with or without our courses, even if you take a little longer. Never lose confidence in your future. The future is bright, it is full of hope, and full of amazing things that are coming your way.
All the best!
Here are the courses in which you could enroll at the moment:
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